TITLE 5
PUBLIC PROPERTY, PURCHASES AND CONTRACTS
Chapter
01 Department Of School And Public Lands
02 State-Owned Lands In General
03 Selection, Exchange And Classification Of School And Public Lands
04 Administration Of School And Public Lands
05 Agricultural And Grazing Leases Of School And Public Lands
06 Timber Sales On School And Public Lands
07 Minerals On School And Public Lands
08 Rural Credit Mineral Reservation
09 Sale Of School And Public Lands
10 State School And Endowment Funds
11 Payments In Lieu Of Taxes On State Lands
12 South Dakota Building Authority
13 State Engineer [Superseded]
14 Public Buildings And Improvements
15 State Capitol And Grounds
16 State-Owned Housing Facilities
17 State Cement Plant [Repealed And Transferred]
18 Public Contracts Awarded On Competitive Bids [Repealed]
18A Public Agency Procurement--General Provisions
18B Procurement Of Public Improvements
18C Procurement By Local Government Units
18D Procurement By State Agencies
19 Residential Preference In Public Contracts [Repealed]
20 Preference For Handicapped In Public Contracts [Repealed]
21 Performance Bonds For Public Improvement Contracts
22 Liens Relating To Public Improvement Contracts
23 State Purchases And Printing [Repealed]
24 Receipt, Care And Accounting For Public Property
24A Disposal Of State Surplus Property
25 State Motor Vehicle Pool
26 Prompt Payment Act
27 Capital Construction Fund
28 South Dakota Municipal Facilities Authority [Repealed]
29 Research Parks
5-1-1
Repealed.
5-1-1.1 to 5-1-1.3. Repealed.
5-1-2
Definition of terms.
5-1-3
Appointment of deputy commissioner--Oath of office--Powers.
5-1-4
Organization of commissioner's office--Employment of personnel.
5-1-5
Superseded.
5-1-6
Travel and expenses of departmental personnel.
5-1-7
General powers of commissioner--Plats and records--Sales and leases--Contracts and
patents--Seal of office.
5-1-7.1
Repealed.
5-1-7.2
Additional types of subsidiary leases--Commercial, forestry or military purposes--Rules.
5-1-8
Land records and conveyances transferred to commissioner--Indexing and filing.
5-1-9
Records of subdivisions granted to state--Organization and contents.
5-1-10
Public survey records maintained--Access of United States to records.
5-1-11
Fees chargeable for copies and examinations of survey records--Disposition.
5-1-12, 5-1-13. Repealed.
5-1-14
Annual report to Governor--Contents.
5-1-15
Permit required for paleontological excavation.
5-1-16
Promulgation of rules governing issue of paleontological excavation.
5-1-17
Permission required for removal of paleontological specimen.
5-1-18
Paleontological collections as property of state.
5-1-19
Revocation or suspension of paleontological excavation license--Violation as
misdemeanor.
5-1-20
Discovery of paleontological resources to be reported to commissioner.
5-1-2. Definition of terms.
Terms used in chapters 5-1 to 5-10, inclusive, unless the context otherwise plainly requires, mean:
(1) "Commissioner," the commissioner of school and public lands.
(2) "Geothermal resources," the use of the natural heat of the earth or the energy, in whatever form, below the surface of the earth for commercial or industrial heating or electrical generating purposes.
Source: SL 1911, ch 224, § 87; RC 1919, § 5728; SDC 1939, §§ 15.0101, 15.0201; SL 1976, ch 20, § 14; SL 1980, ch 40, § 11.
5-1-3. Appointment of deputy commissioner--Oath of office--Powers.
The commissioner of school and public lands is authorized to appoint a deputy, for whose acts he shall be responsible. The appointment shall be in writing and revocable at the pleasure of the commissioner. Before entering upon the duties of his office, the deputy shall take and subscribe the constitutional official oath, such appointment and oath to be filed in the Office of the Secretary of State. In case of the absence or disability of the commissioner the deputy shall possess the powers and perform the duties of the commissioner.
Source: SL 1911, ch 224, § 3; RC 1919, § 5630; SDC 1939, § 15.0102.
5-1-4. Organization of commissioner's office--Employment of personnel.
The commissioner of school and public lands may divide the work of his office into such departments and employ such clerks and assistants as may be necessary to properly conduct the work of his office, for each of whose acts he shall be responsible.
Source: SL 1911, ch 224, § 4; RC 1919, § 5631; SDC 1939, § 15.0102.
5-1-6. Travel and expenses of departmental personnel.
The commissioner of school and public lands, the deputy commissioner, and all other clerks and other employees shall be allowed traveling and other expenses in accordance with chapter 3-9 necessary to the discharge of their respective duties in connection with the Department of School and Public Lands.
Source: SL 1911, ch 224, § 82; RC 1919, § 5712; SDC 1939, § 15.0103; SL 1976, ch 20, § 1; SL 1980, ch 23, § 18.
5-1-7. General powers of commissioner--Plats and records--Sales and leases--Contracts and patents--Seal of office.
The commissioner of school and public lands shall have the direction, management, and control of all lands heretofore granted or which may hereafter be granted to this state by the United States, or otherwise acquired, and of all the plats and records pertaining to the title thereto and the disposition thereof. He shall conduct all sales and have general supervision of all leasing of school and public lands. He shall issue all contracts and patents, and may approve or disapprove any lease submitted to him by the county auditors of the several counties. He shall keep on file all contracts and leases, and shall keep a complete record of all patents to school and public lands, and of all bonds and mortgages for moneys obtained from the permanent funds of school or endowment lands. He shall keep a seal for the use of his office to be known and designated as "the seal of the commissioner of school and public lands."
Source: SL 1911, ch 224, § 1; RC 1919, § 5628; SDC 1939, § 15.0101.
5-1-7.2. Additional types of subsidiary leases--Commercial, forestry or military purposes--Rules.
In addition to agricultural and grazing leases pursuant to chapter 5-5, mineral leases pursuant to chapter 5-7, and wind and solar easements and leases pursuant to § 5-4-5.2, the commissioner of school and public lands may, by rules promulgated pursuant to chapter 1-26, provide for the establishment of additional types of subsidiary leases on school and public lands. The additional leases may be for commercial or forestry purposes and shall be both economical and consistent with the stewardship of the school and public lands.
Leases may also be established to authorize the use of such lands for military purposes by state or federal military units.
Rules authorized by this section may provide for all necessary considerations, including the creation, marketing, administration, and termination of the leases.
Source: SL 1992, ch 41; SL 2002, ch 29, § 1; SL 2019, ch 45, § 1.
5-1-8. Land records and conveyances transferred to commissioner--Indexing and filing.
All boards, commissions, or other agencies of the State of South Dakota having the control of and administering lands in which the title is in the State of South Dakota, or any officer of the state having the custody of any such records shall transfer to the commissioner of school and public lands all records pertaining to the same including deeds, patents, and other conveyances together with all easements or grants of any kind affecting such land. The commissioner of school and public lands shall index such lands in the platbooks of the Department of School and Public Lands according to the legal description thereof and index and file all title papers or easements heretofore or hereafter granted.
Source: SL 1951, ch 86, §§ 1, 2; SDC Supp 1960, § 55.0207.
5-1-9. Records of subdivisions granted to state--Organization and contents.
The commissioner of school and public lands shall cause to be prepared and kept in his office a record of each subdivision of lands granted to the state for all purposes. For the lands embraced within each grant for a distinct and specific purpose, separate books of record shall be provided. Such books shall contain a description of each subdivision, and in columns opposite such description there shall be recorded, as may be required, the appraised value of the tract, date of lease, name of lessee, term of lease, and amount of annual rental, date of sale, name of purchaser, price, amount paid in cash, amount unpaid and when due, amount of annual interest, date of patent, name of patentee, and such other information as may be necessary to make a full and complete abstract of the condition of such tract.
Source: SL 1911, ch 224, § 2; RC 1919, § 5629; SDC 1939, § 15.0104.
5-1-10. Public survey records maintained--Access of United States to records.
The state archivist shall receive and safely keep in his office as public records of this state all field notes, maps, plats of surveys, mineral survey notes, homestead survey notes, records, or other papers relating to the public survey of this state, whenever the same shall be turned over to the state in pursuance of law. The United States shall at all times have free access thereto for the purpose of taking abstracts therefrom and making copies thereof.
Source: SL 1923, ch 260, § 1; SDC 1939, § 15.0104; SL 1985, ch 35, § 1.
5-1-11. Fees chargeable for copies and examinations of survey records--Disposition.
The state archivist as custodian of the surveyor general's records and the commissioner of school and public lands may charge and receive the following fees:
(1) For copying field notes, fifty cents per page of legal size;
(2) For copying plats, three dollars;
(3) For copies of courses and distances on township map, printed form of thirty-six sections, three dollars;
(4) For examining field notes, maps, or other records, four dollars per hour;
(5) The minimum charge in all the above cases shall be four dollars;
(6) For certificate with seal, two dollars;
(7) For copies of leases, patents, or other instruments on file or of record, including certificate and seal, three dollars.
All fees collected pursuant to this section shall be deposited in the state general fund.
Source: SL 1925, ch 269, § 1; SDC 1939, § 15.0105; SL 1955, ch 34; SL 1981, ch 33; SL 1984, ch 34, § 1; SL 1985, ch 35, § 2.
5-1-14. Annual report to Governor--Contents.
The commissioner of school and public lands shall make a report to the Governor, showing the transactions of his office, the condition of the school and public lands, and the funds arising from the sale and leasing thereof, covering the year ended on the thirtieth day of the preceding June.
Source: SL 1911, ch 224, § 86; SL 1913, ch 291, § 12; RC 1919, § 5632; SDC 1939, § 15.0106; SL 1980, ch 23, § 13.
5-1-15. Permit required for paleontological excavation.
Before any person may survey or excavate for paleontological resources on any lands under the jurisdiction of the commissioner of school and public lands, the person shall obtain a permit from the commissioner.
Source: SL 1996, ch 36, § 1.
5-1-16. Promulgation of rules governing issue of paleontological excavation.
The commissioner of school and public lands shall promulgate rules pursuant to chapter 1-26 governing the issuance of permits required in § 5-1-15. The rules shall include:
(1) Minimum permittee qualifications;
(2) Duration of permit;
(3) For excavation permits, coordination with the lessee for entry to the property for the purposes of the permit;
(4) For excavation permits, research designs that provide for the recovery of the maximum amount of scientific, paleontological, and educational information, in addition to the physical recovery of specimens and the reporting of paleontological information meeting current standards of scientific rigor;
(5) The need, if any, to submit data obtained in the course of field investigations to the commissioner;
(6) Proof of consultation with a qualified paleontologist regarding curation of collections;
(7) Fees not to exceed twenty-five dollars for an exploration permit and two hundred fifty dollars for an excavation permit; and
(8) Permit application forms.
Source: SL 1996, ch 36, § 2.
5-1-17. Permission required for removal of paleontological specimen.
No person may remove from the state, any specimen from lands under the jurisdiction of the commissioner of school and public lands, without permission from the commissioner, after consultation with the lessee and any other agencies managing other interests in the land.
Source: SL 1996, ch 36, § 3.
5-1-18. Paleontological collections as property of state.
Any scientifically significant paleontological collections recovered from lands under the jurisdiction of the commissioner of school and public lands are the property of the state. The repository or curation facility for collections from such lands shall be designated by the commissioner in consultation with a qualified paleontologist.
Source: SL 1996, ch 36, § 4.
5-1-19. Revocation or suspension of paleontological excavation license--Violation as misdemeanor.
The commissioner of school and public lands may revoke or suspend a permit if the permittee fails to conduct a survey or excavation pursuant to law, the rules promulgated by the commissioner, or permit provisions. Any person violating §§ 5-1-15 to 5-1-20, inclusive, or the rules promulgated by the commissioner is guilty of a Class 1 misdemeanor, and in addition, shall forfeit to the state any interest in all paleontological resources discovered by or through the person's efforts.
Source: SL 1996, ch 36, § 5.
5-1-20. Discovery of paleontological resources to be reported to commissioner.
Any person who discovers any scientifically significant paleontological resources on lands under the jurisdiction of the commissioner of school and public lands shall promptly report the discovery to the commissioner. Nothing in this section may be construed to authorize any person to survey or excavate for paleontological resources other than as provided in §§ 5-1-15 to 5-1-20, inclusive.
Source: SL 1996, ch 36, § 6.
CHAPTER 5-2
STATE-OWNED LANDS IN GENERAL
5-2-1 Acquisition of options for additional lands for institutions.
5-2-2 5-2-2. Repealed by SL 1984, ch 34, § 4.
5-2-2.1 Sale of realty by Board of Regents--Deposit, crediting, and investment of proceeds.
5-2-2.2 Minimum cash price--Method of sale--Time, notice, and conduct of auction--Conveyance.
5-2-2.3 Use of proceeds and interest from sale.
5-2-2.4 Lease of land by executive branch--Period of lease--Renewal--Amount.
5-2-3 Exchange of state lands for federal lands in Indian reservations--Advertising and appraisement not required.
5-2-4 State ownership of lake and river beds declared--Riparian owners protected.
5-2-5 Contracts permitting taking of sand and gravel from state-owned lake and river beds--Exclusive privilege prohibited.
5-2-6 Proceeds of sand and gravel contracts--Payment--Deposit.
5-2-7 Rules and conditions governing sand and gravel contracts.
5-2-8 Unauthorized taking of materials from lake or river beds as misdemeanor.
5-2-9 Enforcement of state's right to materials from lake and river beds.
5-2-10 Public easements over state and county lands for conservation and parks--Grant of easements for electric, water, sewer, and fuel lines--Air rights.
5-2-11 Application for conveyance or easement on state-owned lands--Approval by Governor--Recording--Disposition of payments.
5-2-11.1 Abandoned railroads on state property--Documentation by affidavit of commissioner.
5-2-11.2 Recording of affidavit.
5-2-11.3 Previously recorded affidavits validated.
5-2-12 Mineral reservation in leases and conveyances of state land.
5-2-13 Disposition of proceeds from sale or lease of reserved minerals.
5-2-14 Conveyance or exchange of reserved minerals with United States--Appraisal.
5-2-15 Assignment to inferior lien holders of mortgages and sheriffs' certificates held by state--School fund mortgages.
5-2-16 Assignment by county commissioners of sheriffs' certificates in school loan mortgages.
5-2-17 Land sales within federal irrigation projects to conform to federal limitations.
5-2-18 Relocation benefits and assistance in acquisition of property--Compliance with federal act.
5-2-19 Review process of property given to state.
5-2-20 Transfer of state's interest in Camp Lakodia to 4-H Foundation.
5-2-1. Acquisition of options for additional lands for institutions.
If, in the judgment of the State Board of Regents or of a department head, it is deemed essential to the welfare of any state institution under their control to acquire additional lands for any such institution, the board or department head may, upon the written approval of the Governor, buy an optional right to purchase any such tract or tracts of lands. Every such option shall cover a period expiring not less than thirty days after adjournment of the next regular session of the Legislature.
Source: SL 1919, ch 28, § 1; SDC 1939, § 55.0202; SL 1989, ch 20, § 51.
5-2-2.1. Sale of realty by Board of Regents--Deposit, crediting, and investment of proceeds.
The Board of Regents may sell extraneous real property subject to the provisions of the Constitution and approval of the Legislature.
The proceeds from a sale of institutional endowment lands shall be deposited as provided in chapter 5-3 and the proceeds of other extraneous real property, net of any costs associated with the sale of the land, including in the case of a sale comprising both endowment lands and other extraneous real property, costs allocable to the sale of endowment lands, shall be deposited with the state treasurer and credited to a fund specifically designated as the real property acquisition and capital improvement fund for each institution under the Board of Regents involved in such transaction. The proceeds shall be invested by the State Investment Council in accordance with chapter 4-5. Expenditures from the fund shall be approved by the Legislature.
Source: SL 1976, ch 7, § 1; SL 1982, ch 256, § 3; SL 1989, ch 20, § 52; SL 1989, ch 49, § 1; SL 1990, ch 30, § 18; SL 2011, ch 29, § 6; SL 2011, ch 30, § 5; SL 2018, ch 111, § 7, eff. Feb. 8, 2018.
5-2-2.2. Minimum cash price--Method of sale--Time, notice, and conduct of auction--Conveyance.
The sale of real property pursuant to § 5-2-2.1 shall be made at not less than the full appraised value established by the commissioner of school and public lands, for cash at public auction or under the terms of an installment sale as provided pursuant to § 5-9-10. The public auction shall be held not less than five days after the last of at least two publications of notice of the sale were published in at least three daily newspapers of the state, which publications of notice shall disclose all details relative to the sale. All such sales shall be conducted by the commissioner of school and public lands. Conveyance shall be made in the name of the State of South Dakota acting through the board or department involved in the transaction and executed in the manner provided by § 5-2-11.
Source: SL 1976, ch 7, § 3; SL 1985, ch 36, § 1; SL 1989, ch 20, § 53.
5-2-2.3. Use of proceeds and interest from sale.
Except for the proceeds from the sale of endowment lands, the net proceeds, and accumulated interest from sale of land under the Board of Regents pursuant to § 5-2-2.1 shall be used by the Board of Regents for acquisition of real and personal property or capital improvements subject to the approval of the Legislature. For purposes of this section, the definition of capital improvement contained in § 5-14-1 applies.
Source: SL 1976, ch 7, § 2; SL 1989, ch 20, § 54; SL 1989, ch 49, § 2; SL 1990, ch 30, § 19; SL 2011, ch 29, § 7; SL 2011, ch 30, § 6; SL 2018, ch 111, § 8, eff. Feb. 8, 2018.
5-2-2.4. Lease of land by executive branch--Period of lease--Renewal--Amount.
The executive branch may lease land for a period not to exceed five years, subject to one renewal for an additional period not to exceed five years upon approval of the board or department involved in the lease. The lease shall be made for an amount established by appraisal by the commissioner of school and public lands.
Source: SL 1976, ch 7, § 4; SL 1989, ch 20, § 55.
5-2-3. Exchange of state lands for federal lands in Indian reservations--Advertising and appraisement not required.
The State of South Dakota through its several departments, agencies, and institutions, and counties through their boards of county commissioners, may exchange with the approval of the appropriate department of the federal government tracts and sections of land belonging to the State of South Dakota for lands of like character in value belonging to the United States government on Indian reservations, and to execute proper conveyances thereof, in manner and form as provided by existing laws, but without the necessity of complying with any statute requiring advertising, notice, or appraisement, and to accept in return therefor a proper instrument of conveyance to the state of the lands for which such lands are exchanged.
Source: SL 1937, ch 215, § 2; SDC 1939, § 55.0206; SL 1984, ch 35, § 3.
5-2-4. State ownership of lake and river beds declared--Riparian owners protected.
For the purposes of §§ 5-2-4 to 5-2-9, inclusive, the bed and channel of any lake or river in this state or bordering on this state to the middle of the main channel thereof, and all islands and sand bars lying therein shall be considered the property of the State of South Dakota unless this state or the United States has granted or conveyed an adverse legal or equitable interest therein. Nothing in said sections shall affect or impair the rights of riparian owners.
Source: SL 1921, ch 357, § 6; SDC 1939, § 15.0325.
5-2-5. Contracts permitting taking of sand and gravel from state-owned lake and river beds--Exclusive privilege prohibited.
Whenever any person shall desire to take from within or beneath the bed of any navigable river or lake or any other river or lake which is the property of the State of South Dakota any sand, gravel, or other material, he shall first enter into a contract with the commissioner upon such terms and conditions, and upon such terms of payment to the State of South Dakota as the commissioner of school and public lands may determine. No contract shall be made giving any person any exclusive privilege hereunder.
Source: SL 1921, ch 357, § 2; SDC 1939, § 15.0325.
5-2-6. Proceeds of sand and gravel contracts--Payment--Deposit.
All funds received by the state under contracts pursuant to § 5-2-5, shall be paid to the state treasurer under such rules as the commissioner of school and public lands shall promulgate pursuant to chapter 1-26. The state treasurer shall deposit the funds into the school fund of the state.
Source: SL 1921, ch 357, § 5; SDC 1939, § 15.0325; SL 1984, ch 34, § 5.
5-2-7. Rules and conditions governing sand and gravel contracts.
The commissioner of school and public lands is authorized and directed to make and publish all necessary and proper rules, terms, and conditions for the taking, purchasing, or selling of the materials and the products mentioned in § 5-2-5, and to make such changes from time to time, upon proper notice, as the rights of the state and interest of the public may require.
Source: SL 1921, ch 357, § 3; SDC 1939, § 15.0325.
5-2-8. Unauthorized taking of materials from lake or river beds as misdemeanor.
It is a Class 2 misdemeanor for any person to take from within or beneath the bed of any navigable river or lake or any other river or lake which is the property of the State of South Dakota any sand, gravel, or other material except in the manner provided by law.
Source: SL 1921, ch 357, §§ 1, 7; SDC 1939, § 15.9902; SL 1955, ch 41, ch 17, § 2; SL 1980, ch 24, § 64.
5-2-9. Enforcement of state's right to materials from lake and river beds.
It shall be the duty of the attorney general, or any state's attorney, on direction of the Governor, to commence any action necessary to protect the rights of the state under §§ 5-2-4 to 5-2-8, inclusive.
Source: SL 1921, ch 357, § 4; SDC 1939, § 15.0325.
5-2-10. Public easements over state and county lands for conservation and parks--Grant of easements for electric, water, sewer, and fuel lines--Air rights.
The State of South Dakota, through its several departments, agencies, and institutions, and counties through their boards of county commissioners, may grant perpetual easements on lands under their control, dedicating to the public permanent use of the same in the use of water conservation projects or public parks, and may grant easements on or over such lands to any person, association, or corporation, granting the right to erect and maintain poles and wires for the purpose of conducting or transmitting electricity for lighting, heating, and power purposes. The Board of Regents and the executive branch may also grant easements for water, sewer, and fuel lines on land, or air rights over land, at the institutions under their control, which shall be executed pursuant to § 5-2-11.
Source: SL 1937, ch 215, § 1; SDC 1939, § 55.0205; SL 1947, ch 239; SL 1961, ch 266; SL 1967, ch 246; SL 1978, ch 41; SL 1989, ch 20, § 56; SL 1991, ch 47.
5-2-11. Application for conveyance or easement on state-owned lands--Approval by Governor--Recording--Disposition of payments.
Upon application for conveyance of the title, or the granting of an easement of any kind over or across lands in which the title is in the State of South Dakota, the board, commission, or other agency of the State of South Dakota having the control of and administration of such lands shall forward to the commissioner of school and public lands a certified copy of a resolution of the agency requesting the conveyance, stating the consideration and citing the specific authority, if any, authorizing the conveyance. Whereupon, the commissioner shall draw easements or conveyances of the title and submit the same to the Governor for approval. If approved by the Governor, such instruments must be signed by the Governor and attested by the commissioner of school and public lands, who shall cause such conveyance to be recorded in the office of the register of deeds of the county in which said real estate is located. All payments for such land, or easements over or across such lands, must be paid to the state treasurer, who shall credit such payments to the general fund of the State of South Dakota, unless such funds are otherwise specifically dedicated by law.
Source: SL 1951, ch 86, §§ 3, 4; SDC Supp 1960, § 55.0207; SL 2023, ch 3, § 26.
5-2-11.1. Abandoned railroads on state property--Documentation by affidavit of commissioner.
In all cases in which an order, decree, or similar document entered by an authorized office or agency, providing for abandonment of any railroad, or portion thereof, has been recorded in the office of the register of deeds of any county through which such abandoned railroad, or portion thereof, extends, the commissioner of school and public lands shall prepare and execute an affidavit, or document certified as the official act of his office, as to each county through which such abandoned railroad, or portion thereof extends, in which the Department of School and Public Lands presently has, or previously had, since the establishment of such railroad, any right, title, or interest. The affidavit or other document shall describe each legal subdivision through which such railroad extends and the portion acquired for establishing the railroad.
Source: SL 1976, ch 55, § 1.
5-2-11.2. Recording of affidavit.
The commissioner of school and public lands shall present the affidavit or other document pertaining to lands in the particular county to the register of deeds who shall record and index the same.
Source: SL 1976, ch 55, § 2.
5-2-11.3. Previously recorded affidavits validated.
All recordations of affidavits or certified documents of the commissioner of school and public lands, as described in § 5-2-11.1, prior to July 1, 1976, are hereby ratified and declared valid for all purposes.
Source: SL 1976, ch 55, § 3.
5-2-12. Mineral reservation in leases and conveyances of state land.
All sales, leases, and conveyances of lands belonging to the State of South Dakota or to which it may now or hereafter be entitled, including all common school, public buildings, and endowment lands, shall be subject to and contain a reservation to the State of South Dakota of all deposits of coal, ores, metals, and other minerals, asphaltum, oil, gas, geothermal resources, and other like substance in such lands, together with the right to prospect for, mine, and remove the same upon rendering compensation to the owner or lessee for all damages that may be caused by such prospecting or removal. The reserved deposits shall be disposed of only in the manner expressly provided by law.
Source: SL 1919, ch 308, § 1; SDC 1939, § 55.0203; SL 1980, ch 40, § 1.
5-2-13. Disposition of proceeds from sale or lease of reserved minerals.
All money and proceeds derived from the sale or lease of the property and rights reserved by and under the provisions of S.D. Const., Art. VIII, § 19, shall inure to the benefit of the funds for which said lands are held by the state or any of its departments.
Source: SL 1919, ch 308, § 1; SDC 1939, § 55.0203; SL 1984, ch 34, § 6.
5-2-14. Conveyance or exchange of reserved minerals with United States--Appraisal.
When any board, commission, or department of the state having control of any lands belonging to the state, shall in its judgment be satisfied that it is meet and proper to convey to or exchange with the United States of America or any of its departments any mineral rights now held by it or heretofore reserved to it, they shall so declare by proper resolution and direct the necessary instrument of conveyance to be executed upon the payment of the consideration to be determined by a board of appraisers comprised of the commissioner of school and public lands, the state geologist and the state auditor. Said conveyance shall be executed by the Governor and attested by the secretary of state.
Source: SL 1957, ch 320, §§ 1, 2; SDC Supp 1960, § 55.0208.
5-2-15. Assignment to inferior lien holders of mortgages and sheriffs' certificates held by state--School fund mortgages.
All mortgages and sheriffs' certificates of sale in the name of the State of South Dakota shall be assignable to any person holding an inferior lien or having any other bona fide interest in the land covered by such mortgage or certificate whenever it shall appear to be to the best interest of the state to make such assignment and upon full payment of the principal and interest payable under such mortgages or certificates and the authority and power is hereby given to any board or commission having charge of any such liens to execute such assignments by and with the approval of the Governor endorsed thereon.
No such mortgage shall be assigned unless the conditions thereof have been broken. No school fund mortgage shall be assigned without approval of the board of county commissioners of the county wherein the real estate affected by such mortgage is situated.
Source: SL 1925, ch 223, § 1; SDC 1939, § 55.0204.
5-2-16. Assignment by county commissioners of sheriffs' certificates in school loan mortgages.
Sheriffs' certificates of sale issued in foreclosures of school loan mortgages shall be assignable by the resolution of the board of county commissioners of the county wherein the real estate affected thereby is located, without the approval of the Governor or commissioner of school and public lands. Assignments of such sheriffs' certificates of sale shall be executed by the chairman of the board and attested by the county auditor.
Source: SL 1925, ch 223, § 2; SDC 1939, § 55.0204.
5-2-17. Land sales within federal irrigation projects to conform to federal limitations.
No lands belonging to the state within areas to be irrigated from works constructed or controlled by the United States, or its duly authorized agencies, shall be sold except in conformity with the classification of farm units by the United States, and the title to such lands shall not pass from the state until the applicant therefor shall have fully complied with the provisions of the laws of the United States and the regulations thereunder concerning the acquisition of the right to use water from such works, and shall produce the evidence thereof duly issued. After the withdrawal of lands by the United States for any irrigation project, no application for the purchase of state lands within the limits of such withdrawal shall be accepted except upon the conditions prescribed in this section.
Source: SL 1907, ch 180, § 59; RC 1919, § 8258; SDC 1939, § 61.0148; SL 1955, ch 430, § 1; SDC Supp 1960, § 61.0134.
5-2-18. Relocation benefits and assistance in acquisition of property--Compliance with federal act.
The State of South Dakota, its departments, agencies, instrumentalities, or any political subdivisions may provide relocation benefits and assistance to persons, businesses, and farm operations displaced as the result of the acquisition of land or rehabilitation or demolition of structures in connection with federally assisted projects to the same extent and for the same purposes as provided for in the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (P. L. 91-646) as amended by Surface Transportation and Uniform Relocation Assistance Act of 1987 (P. L. 100-17), and may comply with all the acquisition policies contained in said federal act.
Source: SL 1972, ch 136; SL 1988, ch 48, § 1.
5-2-19. Review process of property given to state.
Any real property given to the State of South Dakota shall undergo a review process. The Bureau of Finance and Management shall prepare a fiscal note showing the cost to state government of the gift. Any gift in which the cost to state government exceeds one thousand dollars in any one year requires legislative approval. The Bureau of Finance and Management shall annually report to the Legislature by the first day of the legislative session the gifts received by the state and their costs.
Source: SL 1992, ch 12, § 2.
5-2-20. Transfer of state's interest in Camp Lakodia to 4-H Foundation.
The Governor shall execute a quitclaim deed and release of reversionary interest, which shall be attested by the commissioner of school and public lands, to transfer all the state's reversionary rights in the property, commonly known as Camp Lakodia, located at Lot Two (2) of Croisants Subdivision of Lot Four (4) of Section Fifteen (15), Township One Hundred Six (106), Range Fifty-three (53), West of the Fifth Principal Meridian, Lake County, South Dakota (Contains 15 acres, more or less) to the South Dakota 4-H Foundation, Inc.
Source: SL 2002, ch 30, § 1.
5-3-1
Attorney general to examine titles and protect state's interest.
5-3-2
Acceptance of federal indemnity lands in lieu of statehood grants.
5-3-3
Selection of indemnity lands for land disposed of before statehood.
5-3-4
Selection of indemnity lands for land settled before survey.
5-3-5
Selection of indemnity lands for land within federal reservations--Retention of land
with peculiar value to state.
5-3-6
Selection of indemnity lands for land in lake or navigable river.
5-3-7
Exchange of common school, indemnity, or endowment land--Conditional exchange.
5-3-7.1
Conservation easement for state land exchanged or sold.
5-3-8
Repealed.
5-3-9
Islands and accumulations within streams and lakes administered as school lands--Exceptions.
5-3-10
Rights not acquired by settlement or improvement of islands--Improvements before
1911.
5-3-11
Classification of school and endowment lands according to best use.
5-3-12
List for county auditor of unsold endowment lands in county.
5-3-1. Attorney general to examine titles and protect state's interest.
It shall be the duty of the attorney general to make examination at each of the United States land offices of this state as to the condition of the titles to all school and public lands, and to take such steps before said land office of the United States and the Department of the Interior as may be necessary to protect the title of the state thereto and he may employ such clerical assistance as is requisite therefor.
Source: SL 1890, ch 139, § 1; RPolC 1903, § 102; RC 1919, § 5367; SDC 1939, § 55.1503.
5-3-2. Acceptance of federal indemnity lands in lieu of statehood grants.
When lands granted to the state by act of Congress approved February 22, 1889, have been or shall be lost to the state by reason of being otherwise disposed of by the United States prior to survey, or when, prior to survey, any of such lands have been or shall be included in a reservation of the United States and thereby identification and vesting of such lands in the state may be indefinitely deferred, the state accepts the provisions of sections 2275 and 2276 of the Revised Statutes of the United States, as amended by act of Congress approved February 28, 1891, and the provisions of any and all acts of Congress enacted or to be enacted, whereby lands are granted to the state in lieu of lands which have been lost or have not vested as above described; and the state hereby accepts all of the rights and privileges granted to states and territories by such acts.
Source: SL 1917, ch 336, § 1; RC 1919, § 5721; SDC 1939, § 15.0202.
5-3-3. Selection of indemnity lands for land disposed of before statehood.
The commissioner of school and public lands is authorized and directed to ascertain and locate the general grants of land made by Congress to this state and when such commissioner shall find that sections sixteen and thirty-six or any part thereof, in any township of the state, were sold or otherwise disposed of by or under the authority of any act of Congress prior to the admission of the state into the union, then such commissioner shall, by and with the approval of the secretary of the interior or the secretary of agriculture, when necessary, select from the surveyed, unreserved, and unappropriated lands of the United States within the limits of this state, other land equivalent thereto in area and value, in legal subdivisions of not less than one-quarter section if possible, and as contiguous as may be to the section in lieu of which the same is taken.
Source: SL 1917, ch 336, § 3; RC 1919, § 5722; SDC 1939, § 15.0203.
5-3-4. Selection of indemnity lands for land settled before survey.
When the commissioner of school and public lands shall ascertain that sections sixteen and thirty-six or any part thereof granted to the state have been actually settled upon prior to the survey thereof by the general government, and are occupied by bona fide settlers, claiming title thereto under the homestead laws of the United States, such commissioner is authorized, in its discretion, by and with the approval of the secretary of the interior, or the secretary of agriculture, when necessary, to select from the surveyed, unreserved, and unappropriated public lands of the United States within this state other lands equivalent in area and value, in legal subdivisions, and as contiguous as may be to the section in lieu of which the same is taken.
Source: SL 1917, ch 336, § 4; RC 1919, § 5723; SDC 1939, § 15.0204.
5-3-5. Selection of indemnity lands for land within federal reservations--Retention of land with peculiar value to state.
When the commissioner of school and public lands shall ascertain that sections sixteen and thirty-six, or any part thereof, granted to the state, are or have been lawfully included and embraced within any forest or other reservation established under or by authority of any act of Congress, such commissioner shall, by and with the approval of the secretary of the interior, or the secretary of agriculture when necessary, select from the surveyed, unreserved, and unappropriated public lands of the United States, within this state, other land equivalent thereto in area and value in legal subdivisions and as contiguous as may be to the section in lieu of which the same is taken; provided that if the commissioner shall, upon examination or otherwise, determine that any land, which might ultimately become vested in the state in such forest or other reservation, borders on or is in the vicinity of any lake, waterfall, spring, or other naturally advantageous site, or any natural curiosity, or for any other cause such land has, or in the future may have, peculiar value to the state, then the commissioner shall not certify such lands to the secretary of the interior as a basis for indemnity selections in lieu thereof but the state shall retain its claim to perfect title to such land.
Source: SL 1917, ch 336, § 5; RC 1919, § 5724; SDC 1939, § 15.0205.
5-3-6. Selection of indemnity lands for land in lake or navigable river.
When the commissioner of school and public lands ascertains that what, if surveyed, would be sections sixteen and thirty-six, or any part thereof, granted to the state, falls upon any lake or navigable river, and that the quantity of land intended to be conveyed as sections sixteen or thirty-six is lost to the state thereby, it shall be the duty of such commissioner to apply to the secretary of the interior for permission to select indemnity lands in lieu of the loss, in quantity so sustained by the state.
Source: SL 1917, ch 336, § 6; RC 1919, § 5725; SDC 1939, § 15.0206.
5-3-7. Exchange of common school, indemnity, or endowment land--Conditional exchange.
The commissioner of school and public lands may exchange, with the approval of the Governor and following a public hearing, any common school, indemnity, or endowment land for any land located within the State of South Dakota of like appraised value. The commissioner may also exchange, with the approval of the Governor and following a public hearing, any common school, indemnity, or endowment land for any land located within the State of South Dakota of appraised value of at least seventy-five percent of the school land if the difference is paid in cash at the time of the exchange. The exchange may be conditional if the transfer is completed within five years and the trust corpus is never diminished. Any cash received from the exchange shall be treated as a cash sale pursuant to the provisions of chapter 5-9. The commissioner shall promulgate rules, pursuant to chapter 1-26, to establish the procedures and criteria for a land exchange.
Source: SL 1941, ch 70, § 1; SDC Supp 1960, § 15.0208; SL 1982, ch 49, § 1; SL 1984, ch 35, § 1; SL 1992, ch 42; SL 1999, ch 24, § 1; SL 2016, ch 38, § 1.
5-3-7.1. Conservation easement for state land exchanged or sold.
The State of South Dakota, when exchanging land pursuant to § 5-3-7 or selling land pursuant to chapter 5-9, may hold a perpetual conservation easement preserving the archaeological and paleontological aspects on such land to protect the public interest. The conveyance documents shall specify the conservation easement, if any, and the conservation easement shall be made in accordance with §§ 1-19B-56 to 1-19B-60, inclusive.
Source: SL 2000, ch 28, § 2.
5-3-9. Islands and accumulations within streams and lakes administered as school lands--Exceptions.
All islands and accumulations of land formed in the beds of navigable streams and meandered lakes, except on the Missouri River below the Fort Randall power plant and Lake Francis Case, belonging to the state shall be under the supervision of the commissioner of school and public lands, subject to all the laws and regulations pertaining to common school lands, and all funds heretofore or which may be derived hereafter from the lease or sale of such land shall be covered into the common school funds, subject to the provisions of § 41-4-11.
Source: RCivC 1903, § 902; SL 1911, ch 189; SL 1915, ch 228; RC 1919, § 5727; SDC 1939, § 15.0314; SL 1981, ch 296, § 2.
5-3-10. Rights not acquired by settlement or improvement of islands--Improvements before 1911.
No person shall acquire any vested rights in and to any islands or land described in § 5-3-9, by reason of residence thereon or improvement thereof, except as herein provided. Any person who, for five years next prior to the first day of July 1911, shall have resided upon and improved any such land, shall have the right to purchase not to exceed one hundred sixty acres of the same, at the price in cash at which it is appraised by the commissioner of school and public lands, and the commissioner shall, upon petition filed in his office, within a reasonable time thereafter, appraise such land and sell and convey the same to such petitioner at the appraised price, upon satisfactory proof of the residence and improvement required by this section, payment thereof to be made within sixty days after notice to the petitioner of such appraisement.
Source: RCivC 1903, § 902; SL 1911, ch 189; SL 1915, ch 228; RC 1919, § 5727; SDC 1939, § 15.0314.
5-3-11. Classification of school and endowment lands according to best use.
The commissioner of school and public lands shall classify all common school and endowment lands into three classes, as follows:
Class 1: To include all lands which are most valuable for agricultural purposes;
Class 2: To include all lands which are most valuable for meadow and pasturage purposes;
Class 3: To include all lands which are most valuable for timber, coal, or other purposes.
Source: SL 1911, ch 224, art 2; SL 1917, ch 339, § 2; RC 1919, § 5634; SDC 1939, § 15.0207.
5-3-12. List for county auditor of unsold endowment lands in county.
It shall be the duty of the commissioner of school and public lands to supply to the several county auditors of this state a description of all unsold state indemnity and endowment lands situated within the organized school districts of his county.
Source: SL 1917, ch 335, § 4; RC 1919, § 5720; SDC 1939, § 15.0111.
5-4-1
Claim not acquired by occupancy by trespasser--Right to remove improvements.
5-4-2
Right-of-way for federally authorized waterworks and utility lines--Waterworks of
persons holding water rights--Reservation in conveyances--Purchasers' right to
irrigation water.
5-4-3
Map of waterworks to be filed.
5-4-4
Validation of conveyances and reservations containing obsolete statutory reference.
5-4-5
Easement for utility lines and mains--Cultivation protected--Highways and section
lines to be used where practical.
5-4-5.1
Easements for national guard training sites.
5-4-5.2
Wind and solar easements and leases.
5-4-6
Withholding of land from leasing and cooperative agreement for administration for
community public purposes--Maximum tract.
5-4-7
Purposes for which land may be placed under local administration--Rules and
regulations.
5-4-8
Term of agreement for local administration for public purposes--Renewal--Termination on application for purchase.
5-4-9
Improvements on tracts administered for public purposes--Reimbursement by
purchaser or lessee.
5-4-10
Repealed.
5-4-11
Unauthorized removal of wood from school or public lands as misdemeanor.
5-4-12
Waste on public lands as misdemeanor.
5-4-13
Civil liability for waste or unauthorized removal of wood from public lands--Disposition of moneys recovered.
5-4-14
Preparation of advertisements--Publication--Signature.
5-4-15
Misdemeanor to start open fire on public lands except in established fireplace.
5-4-16
Misdemeanor to start and fail to extinguish open fire regardless of whether in
approved fireplace
.
5-4-17
Liability for damages.
5-4-18
Prohibiting large groups from congregating when necessary to preserve lessee's use
of land or prevent damage.
5-4-1. Claim not acquired by occupancy by trespasser--Right to remove improvements.
No claim to any school or public lands by any trespasser thereon by reason of occupancy, cultivation, or improvement thereof shall be recognized; nor shall compensation be made on account of any improvements made by any such trespasser; provided, any person who has heretofore entered upon such land and has made permanent improvements thereon in good faith, for the purpose of residence or cultivation, shall have the right to remove all such improvements therefrom in case he does not become a purchaser or lessee of such lands under the provisions of this code; such removal to be made within sixty days after a sale or lease has been made, as the case may be.
Source: SL 1911, ch 224, § 80; RC 1919, § 5711; SDC 1939, § 15.0418.
5-4-2. Right-of-way for federally authorized waterworks and utility lines--Waterworks of persons holding water rights--Reservation in conveyances--Purchasers' right to irrigation water.
There is hereby granted over all school and public lands, now or hereafter belonging to the state, a right-of-way for ditches or canals and for tunnels, tramways and telephone and electrical transmission lines, constructed by authority of the United States. There is also hereby granted to any person holding a valid water right under statutes of this state a right-of-way for the construction of dams, canals, water ditches, and laterals over all school and public land now and hereafter belonging to the state, when constructed by authority of the commissioner of school and public lands. All conveyances and contracts of sale of school and public lands shall contain a reservation of such right-of-way. Purchasers of school and public lands shall have the right to obtain water from any irrigation system, parts of which may be located on such school and public lands, provided such lands are purchased within five years after the construction of any such irrigation system.
Source: SL 1907, ch 180, § 58; SL 1911, ch 262; RC 1919, § 8257; SDC 1939, § 61.0147; SL 1955, ch 430, § 1; SDC Supp 1960, § 61.0133.
5-4-3. Map of waterworks to be filed.
Prior to the construction of any canal, ditch, or waterway over or across any school or public lands of this state under the provisions of § 5-4-2, there shall be filed in the Office of the Commissioner of School and Public Lands a map or plat of such proposed canal, ditch, or waterway, clearly indicating the course of the same and the acreage required in its construction and the amount of land proposed to be taken out of each smallest legal subdivision of such school or public lands in the construction of the canal, ditch, or waterway.
Source: SL 1907, ch 180, § 59; RC 1919, § 8258; SDC 1939, § 61.0148; SL 1955, ch 430, § 1; SDC Supp 1960, § 61.0134.
5-4-4. Validation of conveyances and reservations containing obsolete statutory reference.
Any and all conveyances, contracts, or reservations made subject to SDC 61.0147 and executed and delivered subsequent to July 1, 1955, are deemed to have been executed and delivered subject to the provisions of § 5-4-2.
Source: SL 1963, ch 470.
5-4-5. Easement for utility lines and mains--Cultivation protected--Highways and section lines to be used where practical.
The commissioner of school and public lands shall have authority to grant to any person, or telegraph, telephone, gas, oil, or other company an easement for its lines or mains, or for other public purposes, across or upon school and endowment lands, subject to such reasonable terms, conditions, and regulations as the commissioner may prescribe. Such grant shall not interfere with the cultivation of said lands, and shall not be made unless the public highways or section line rights-of-way are impractical for the purposes of the easement.
Source: SL 1929, ch 219; SDC 1939, § 15.0402.
5-4-5.1. Easements for national guard training sites.
The commissioner of school and public lands shall have authority to grant to the South Dakota National Guard training site easements on public lands for the use of the national guard at their request and with concurrence of the lessee.
Source: SL 1976, ch 56.
5-4-5.2. Wind and solar easements and leases.
The commissioner of school and public lands may grant to any person a wind easement, as defined in § 43-13-16, or a solar easement, as defined in § 43-13-16.1. The commissioner of school and public lands may also provide for wind leases and solar leases.
The grant of an easement or a lease under this section is subject to the terms and conditions set forth in §§ 43-13-17 to 43-13-24, inclusive, together with any terms and conditions that are customary and proper for the protection of the state, including the right to enter upon land, construct roads, and erect structures, transmission lines, common carrier lines, and other necessary improvements.
The provisions of chapter 49-7 do not apply to easements and leases authorized by this section.
Source: SL 2019, ch 45, § 2.
5-4-6. Withholding of land from leasing and cooperative agreement for administration for community public purposes--Maximum tract.
Upon petition of a governing board of any state agency, county board, school district board, or organized township board of the state to the commissioner of school and public lands said commissioner of school and public lands may withhold from regular leasing any tract of school and/or endowment land or land held in trust by the State of South Dakota, not to exceed six hundred forty acres in one tract, and offer the same under a special cooperative agreement with such board in accordance with the provisions in §§ 5-4-7 to 5-4-9, inclusive.
Source: SL 1941, ch 71, § 1; SDC Supp 1960, § 15.0420.
5-4-7. Purposes for which land may be placed under local administration--Rules and regulations.
Whenever it shall be the opinion of the commissioner of school and public lands, after presentation of the petition provided in § 5-4-6, and upon investigation of the facts therein contained he shall if, in his opinion, the interests of the citizens of the community can best be served, provide for the setting aside and withholding from regular leasing any such tract not to exceed six hundred forty acres in one tract for soil conservation purposes, public parks or for the purpose of providing a children's recreational playground to be used by the general public under such rules and regulations as the local governing board shall provide and which are approved by the commissioner of school and public lands.
Source: SL 1941, ch 71, § 2; SDC Supp 1960, § 15.0420.
5-4-8. Term of agreement for local administration for public purposes--Renewal--Termination on application for purchase.
The agreement authorized by § 5-4-6 shall be for a term of five years and may be renewed for an additional term of five years upon approval by the commissioner of school and public lands of an application for such renewal. Provided, however, that the agreement may be terminated at any time by the commissioner of school and public lands if application is made for the purchase of the lands covered by the agreement.
Source: SL 1941, ch 71, § 3; SDC Supp 1960, § 15.0420.
5-4-9. Improvements on tracts administered for public purposes--Reimbursement by purchaser or lessee.
Permits to place improvements on such lands shall be granted in such manner as permits are granted on all leased school and endowment lands or lands held in trust for the State of South Dakota and upon termination of the agreement mentioned in § 5-4-6 the subsequent lessee or the purchaser shall reimburse the holder of such permits as provided in §§ 5-5-29 to 5-5-32, inclusive.
Source: SL 1941, ch 71, § 4; SDC Supp 1960, § 15.0420.
5-4-11. Unauthorized removal of wood from school or public lands as misdemeanor.
Any person who shall cut, remove, or attempt to remove any wood belonging to any school, public, or endowment lands without first having obtained permission from the commissioner of school and public lands so to cut and remove said wood is guilty of a Class 1 misdemeanor.
Source: SL 1890, ch 140, § 2; SL 1901, ch 184, § 2; RPenC 1903, § 539; SL 1911, ch 253, § 1; RC 1919, § 3833; SDC 1939, § 13.1311; SL 1980, ch 24, § 65.
5-4-12. Waste on public lands as misdemeanor.
This section applies to any public lands under the jurisdiction, administration, or control of the commissioner of school and public lands. Any person who, without being duly authorized:
(1) Commits waste or depredation on such lands;
(2) Removes, or attempts to remove from such land any valuable thing naturally a product of or an appurtenance thereto;
(3) Burns, or permits to be burned, any stubble on such lands leased to him;
(4) Uses, or attempts to use, any part of such lands for meadow or pasturage purposes;
(5) Cuts, removes, or attempts to remove therefrom any hay;
(6) Breaks, or attempts to cultivate, any part of such lands;
(7) Sows any flax on such lands;
(8) Fails or neglects to till or manage any such lands leased to him for agricultural purposes without an approved conservation plan as adopted by the local conservation district subject to the commissioner's approval;
(9) Fails or neglects to pile and dispose of all brush and debris on any such lands upon which timber has been cut by him, as provided by law;
is guilty of a Class 2 misdemeanor.
Source: SL 1890, ch 140, § 1; SL 1901, ch 184, § 1; RPenC 1903, § 538; SL 1909, ch 95, § 1; SL 1911, ch 253, § 1; RC 1919, § 3832; SDC 1939, § 13.1310; SL 1980, ch 24, § 66; SL 1985, ch 37, § 1.
5-4-13. Civil liability for waste or unauthorized removal of wood from public lands--Disposition of moneys recovered.
Any person who violates any provision of § 5-4-11 or 5-4-12 shall, in addition to the criminal action therein provided for, be liable in a civil action for double the minimum rental of any legal subdivision used in whole or in part, and for double the damages otherwise resulting from his act. All moneys recovered as a result of such actions shall be paid into the county treasury of the proper county and placed to the credit of the interest and income fund of the class to which the lands belong. Moneys received by county treasurers under the provisions of this section and §§ 5-4-11 and 5-4-12 shall be accounted for and remitted monthly to the commissioner of school and public lands.
Source: SL 1890, ch 140, § 3; SL 1901, ch 184, §§ 4, 5; RPenC 1903, § 540; SL 1909, ch 95, § 1; SL 1911, ch 253, § 1; RC 1919, § 3834; SDC 1939, § 37.1909; SL 1984, ch 34, § 7; SL 1989, ch 30, § 11.
5-4-14. Preparation of advertisements--Publication--Signature.
The commissioner of school and public lands shall prepare all advertisements provided for in this title, cause them to be published and sign them as commissioner.
Source: SL 1911, ch 224, §§ 40, 41; RC 1919, §§ 5664, 5665; SDC 1939, § 15.0607; SL 1984, ch 34, § 8.
5-4-15. Misdemeanor to start open fire on public lands except in established fireplace.
Except in the Black Hills Forest Fire Protection District where it is a Class 1 misdemeanor, it is a Class 2 misdemeanor for any person to start or allow to start an open fire on public lands owned, leased, controlled, or managed by the state or any political subdivision of the state unless the fire is set in an established fireplace approved or provided by the respective governmental entity. This section does not apply to persons authorized by the state or any political subdivision of the state to start fires on such lands within the jurisdiction of the respective governmental entity or to fires on shoreline barren of vegetation which do not constitute an apparent risk of fire to surrounding vegetation not located within a state, county, or municipal park, state recreation area, or nature preserve.
Source: SL 1997, ch 239, § 1.
5-4-16. Misdemeanor to start and fail to extinguish open fire regardless of whether in approved fireplace.
It is a Class 1 misdemeanor for any person to start or allow to start an open fire and fail to extinguish that fire on public lands owned, leased, controlled, or managed by the state or any political subdivision of the state regardless of whether the fire was started in an approved fireplace.
Source: SL 1997, ch 239, § 2.
5-4-17. Liability for damages.
Anyone engaging in any of the activities prohibited by § 5-4-15, 5-4-16, or 34-35-9 is liable for all damages caused by the fire and all fire suppression and extinguishment costs. Criminal prosecution is not a prerequisite to liability for damages or for fire suppression and extinguishment cost.
Source: SL 1997, ch 239, § 3.
5-4-18. Prohibiting large groups from congregating when necessary to preserve lessee's use of land or prevent damage.
Upon the request of the Governor and the sheriff of the county where the public land is situated, the commissioner of school and public lands may prohibit any group larger than twenty persons from congregating upon any tract of land under the supervision of the commissioner of school and public lands, if the prohibition is necessary to preserve the undisturbed use of the land by the lessee or if the land may be damaged by the activity.
Source: SL 2017, ch 42, § 1, eff. Mar. 13, 2017.
5-5-1
Definition of terms.
5-5-2
Definition of "agricultural purposes.".
5-5-3
Designation of lands to be leased--Establishment of regulations.
5-5-4
Leases to be at public auction after notice--Maximum tract.
5-5-5
Publication of notice of leasing auction.
5-5-6
Conduct, time, and place of leasing auction--Commissioner to conduct auction.
5-5-6.1
Minimum rental rate for agricultural lands.
5-5-7
Repealed.
5-5-8
Division or joining of tracts not leased at auction--Continuation and adjournment of
auction.
5-5-9
Repealed.
5-5-10
Repealed.
5-5-10.1
Appraisal of grazing lands--Definition of terms.
5-5-10.2
Commissioner's duty concerning appraisals and records.
5-5-10.3
Factors considered in appraisals of grazing lands.
5-5-10.4
Minimum annual rental for grazing lands--Formula.
5-5-11
Rent payable in advance--Maximum term of lease--Governor's approval required--Lessee's right to renewal.
5-5-12
Short-term leases acceptable--Leasing without readvertisement--Entitlement to new
five-year lease.
5-5-13
Special four-year leases for approved land renovation practices--Cancellation--Entitlement to new five-year lease.
5-5-14
Provisions for sale or exchange of land unimpaired--Cancellation of lease to permit
sale or exchange.
5-5-15
Deposit of first year's rent by successful bidder--Approval, execution, and delivery
of lease--Return of deposit if lease disapproved.
5-5-16
Rent payable annually in advance to commissioner.
5-5-17
Action to recover delinquent rent or forfeit lease--Prosecution of action--Proceeds of
action.
5-5-18
Agricultural lessee to clear weeds and pests.
5-5-19
Waste and burning on leased lands prohibited--Action for forfeiture and damages.
5-5-20
Assignment of lease--Approval required--Form--Filing--Fee--Subletting prohibited--Double damages for subletting.
5-5-21
Action to enforce prohibition against subletting--Disposition of proceeds.
5-5-22
Permit for improvements and conservation activities by lessee--Right of removal--State not liable for material or labor.
5-5-23
State ownership of improvements not removed--Permit renewed by new lease by
same lessee.
5-5-24
Permit for fall tillage, weed control and planting in final year of lease--Valuation by
board of appraisal.
5-5-25
Notice to lessee of expiration of lease--Rental rate for extension.
5-5-26
Repealed.
5-5-27
Extension or renewal on application by lessee--Cancellation of lease on failure to
renew.
5-5-28
Permit to new lessee to enter for fall tillage, weed control, and planting--Protection
of original lessee.
5-5-29
Deposit by new lessee or purchaser to cover improvements--Election by owner to
remove improvements.
5-5-30
Application by owner of improvements for appraisal--Deposit for cost of appraisal.
5-5-31
Appraisal of improvements--Composition and appointment of board--Report of
appraisal--Immunity from liability.
5-5-32
Acceptance or rejection of appraisal.
5-5-33
Hunting in crops on school and public lands prohibited--Exception.
5-5-1. Definition of terms.
Terms used in this chapter mean:
(1) "Commissioner," the commissioner of school and public lands;
(2) "Lease," the original lease or a certified copy thereof;
(3) "Lessee," the original lessee, or the assignee of such lease, provided the assignment has been made upon the reverse of the original copy of the lease, or a certified copy thereof, and provided further that such assignment shall have been submitted to the commissioner on or before the first day of November first preceding the expiration date of the lease.
Source: SL 1949, ch 71, § 1; SDC Supp 1960, § 15.0405-1.
5-5-2. Definition of "agricultural purposes.".
Whenever the term "agricultural purposes" is used in this chapter, it means for the purpose of tilling, planting, and producing crops, but does not include grazing land.
Source: SL 1917, ch 339, § 20; RC 1919, § 5652; SDC 1939, § 15.0401; SL 1985, ch 37, § 2.
5-5-3. Designation of lands to be leased--Establishment of regulations.
The commissioner of school and public lands shall designate from time to time such lands as may be leased for meadow and pasturage purposes only, also such lands as may be leased for either meadow and pasturage, or for agricultural purposes.
The commissioner shall establish such regulations as in his judgment shall be necessary in order that such lands may be leased most profitably for the state, and upon designation of the lands as herein provided, the commissioner shall proceed to offer the same for lease.
Source: SL 1917, ch 339, §§ 3, 4; RC 1919, §§ 5635, 5636; SDC 1939, § 15.0403.
5-5-4. Leases to be at public auction after notice--Maximum tract.
All common school, indemnity, and endowment lands shall be leased for pasturage, meadow, farming, the growing of crops of grain and general agricultural purposes, and at public auction after notice as provided in § 5-5-5 and amendatory acts and in tracts not greater than one section.
Source: SL 1949, ch 71, § 2; SDC Supp 1960, § 15.0405-2.
5-5-5. Publication of notice of leasing auction.
If land situated in a county is designated for leasing as provided in § 5-5-3, such land shall be advertised for lease at public auction by the publication of a notice stating the time and place at which the leasing of the land will begin. The notice shall be published once each week for at least four consecutive weeks in the official newspapers of the county in which the land is located.
Source: SL 1917, ch 339, § 5; RC 1919, § 5637; SL 1923, ch 256, § 1; SDC 1939, § 15.0405; SL 1982, ch 50, § 1.
5-5-6. Conduct, time, and place of leasing auction--Commissioner to conduct auction.
The lands designated shall be offered for lease at public auction to the highest bidder, at the courthouse of the county within which the lands are situated; or, if there be no courthouse, at the building in which the office of the county auditor is located. The auction shall be between the hours of ten a.m. and five p.m. The offering for lease shall be conducted by the commissioner, in accordance with the provisions of this chapter, and such instructions as the commissioner may deem necessary.
Source: SL 1917, ch 339, § 8; RC 1919, § 5640; SDC 1939, § 15.0406; SL 1994, ch 47, § 1.
5-5-6.1. Minimum rental rate for agricultural lands.
The commissioner of school and public lands shall establish the minimum annual rental rate per acre of all agricultural lands which are administered by the commissioner. The minimum annual rental rate per acre shall be the rate at which bidding is started. In fixing the minimum annual rental per acre, the following factors shall be considered:
(1) Location, accessibility, and utility of the land as influenced by roads, easements, and topography;
(2) Soil capabilities;
(3) Climate; and
(4) Current rental rates prevailing in the county in which such lands are situated.
Source: SL 1985, ch 37, § 8.
5-5-8. Division or joining of tracts not leased at auction--Continuation and adjournment of auction.
If a tract is offered for lease and no satisfactory bid is received, the legal subdivisions of the tract may be separately offered; or such tract may be offered in connection with other tracts of agricultural or grazing lands within the county which have been offered and for which no acceptable bid has been received.
The auction shall continue from day to day until all tracts of lands advertised for lease have been offered. The commissioner may, for good cause, adjourn the auction for a period of not more than three days.
Source: SL 1917, ch 339, §§ 10, 11; RC 1919, §§ 5642, 5643; SL 1923, ch 257; SDC 1939, § 15.0406; SL 1987, ch 47, § 1; SL 1994, ch 47, § 2.
5-5-10.1. Appraisal of grazing lands--Definition of terms.
Terms used in §§ 5-5-10.2 to 5-5-10.4, inclusive, mean:
(1) "Animal unit," one cow and calf, one horse, five sheep, or five goats;
(2) "Annual animal carrying capacity," the number of acres needed for one animal unit to subsist on natural forage, on a given tract of land for one year;
(3) "Rental rate," twenty percent of the average price of one calf as sold in South Dakota for the last reported five years based on the weight of a four hundred twenty-five pound calf.
Source: SL 1969, ch 33, § 3; SL 1977, ch 46, §§ 1, 2.
5-5-10.2. Commissioner's duty concerning appraisals and records.
It shall be the duty of the commissioner of school and public lands, as rapidly as practicable, to cause the grazing lands administered by the state to be appraised as to their annual animal carrying capacity, and to make and preserve a record thereof in his office, and at least every ten years cause said lands to be reexamined as to their annual animal carrying capacity so as to keep the records thereof in his office reasonably accurate.
Source: SL 1969, ch 33, § 1; SL 1977, ch 46, § 3.
5-5-10.3. Factors considered in appraisals of grazing lands.
In appraising such grazing lands the following factors shall be taken into consideration:
(1) Inventory of the forage resources: kind, amount, and location of vegetation;
(2) Accessibility and usability of the forage resources as influenced by topography, availability of stock water and season of usability;
(3) Condition of soils--the erosion situation;
(4) Other and related resources--such as timber and watershed protection;
(5) Annual animal carrying capacity used by other public agencies in the same locality;
(6) Pertinent facts and figures submitted by stockmen living in the area and directors of state grazing districts including the land or in its vicinity;
(7) Carrying capacity set for similar land in a state grazing district in which the land is situated.
Source: SL 1969, ch 33, § 2; SL 1977, ch 46, § 4.
5-5-10.4. Minimum annual rental for grazing lands--Formula.
The commissioner of school and public lands shall establish the minimum annual rental rate per acre of all grazing lands which are administered by the commissioner. The minimum annual rental rate per acre shall be at the rate at which bidding shall start.
In fixing the minimum annual rental per acre, the following formula shall be used:
The rental rate shall be divided by the annual animal carrying capacity.
The carrying capacity of the land, to be used in the above formula, shall be in accordance with the determination of the commissioner of school and public lands made pursuant to the appraisal of grazing lands provided in § 5-5-10.2.
The average price per pound of all calves sold in South Dakota shall be taken from statistics published by the South Dakota Crop and Livestock Reporting Service of the United States Department of Agriculture current at the time of computation of the rental.
Source: SL 1969, ch 33, § 4; SL 1970, ch 35; SL 1977, ch 46, § 5.
5-5-11. Rent payable in advance--Maximum term of lease--Governor's approval required--Lessee's right to renewal.
All rents, except rents from sharecropping which shall be paid after the crop has been harvested, shall be paid annually in advance. No term of lease may exceed five years, nor is any lease valid until it receives the approval of the Governor. However, any lessee of such common school, indemnity, or endowment lands is, at the expiration of a five-year lease, entitled, at the lessee's option, to a new lease for the land included in the lessee's original lease, or such portion thereof which has not been sold, for a period of five years.
Source: SL 1949, ch 71, § 2; SDC Supp 1960, § 15.0405-2; SL 1996, ch 37.
5-5-12. Short-term leases acceptable--Leasing without readvertisement--Entitlement to new five-year lease.
The commissioner of school and public lands may accept a bid for a lease covering a period of one year or more, not exceeding five years, and in case no bids or proposals are made for any term, under the publication required in § 5-5-5, or in case of a failure from any cause to complete the leasing of any tract offered, it shall within nine months thereafter be lawful to lease such lands under the provisions of this chapter without a readvertisement. However, any lessee of such common school, indemnity, or endowment lands is, at the expiration of a lease, entitled to a new lease for the land included in his original lease, or such portion thereof which has not been sold, for a period of five years.
Source: SL 1917, ch 339, § 5; RC 1919, § 5637; SL 1923, ch 256, § 1; SDC 1939, § 15.0405; SL 1987, ch 47, § 2.
5-5-13. Special four-year leases for approved land renovation practices--Cancellation--Entitlement to new five-year lease.
The commissioner may lease agricultural and grazing lands for the period of up to four years for the purpose of approved land renovation practices such as summer-fallowing, mechanical or chemical control, ripping, furrowing, contouring, deferred grazing, wildlife production, or conservation plans as approved by the local conservation district, if in his opinion it is necessary to do so in order to bring the land back into production, the lessee to pay only one year's rent for such land. If any lands are leased as above provided, the person leasing such land, before the lease is approved by the commissioner, shall pay to the county treasurer of the county in which the land is situated the total amount of rent therefor. If the lessee so renting the land fails or neglects to implement the above renovation practices at the proper time or in the proper manner, the commissioner in his discretion may declare the lease canceled and the amount paid thereon shall be forfeited. However, any lessee of such common school, indemnity, or endowment lands is, at the expiration of a lease, entitled, at his option, to a new lease for the land included in his original lease, or such portion thereof as has not been sold, for a period of five years.
Source: SL 1917, ch 339, § 15; RC 1919, § 5647; SDC 1939, § 15.0412; SL 1985, ch 37, § 3; SL 1987, ch 47, § 3.
5-5-14. Provisions for sale or exchange of land unimpaired--Cancellation of lease to permit sale or exchange.
Nothing herein contained in any way prevents the sale or exchange of common school, indemnity, or endowment lands as provided in §§ 5-3-7 and 5-9-1 nor prevents the commissioner of school and public lands from incorporating, into each lease a sales clause permitting the cancellation of any lease on January first of any year of the term thereof for the purpose of sale or exchange.
Source: SL 1949, ch 71, § 6; SDC Supp 1960, § 15.0405-6; SL 1976, ch 20, § 2; SL 1985, ch 38.
5-5-15. Deposit of first year's rent by successful bidder--Approval, execution, and delivery of lease--Return of deposit if lease disapproved.
If the highest offer for any tract of land is satisfactory and the tract is reserved for the bidder, the bidder shall at once deposit with the commissioner the amount specified as the annual rental for the tract. A lease of such tract shall be prepared in duplicate, according to the form prescribed by the commissioner. The lessee shall sign the lease.
If the commissioner approves the lease, the commissioner shall submit the lease to the Governor for approval. If the Governor approves the lease, the Governor shall certify the approval and the commissioner shall sign the lease in duplicate on behalf of the state and file a copy of the lease and the Governor's approval in the commissioner's office. The commissioner shall deliver one copy of the lease to the lessee, and notify the county treasurer of the execution and approval of the lease.
If the commissioner or the Governor disapprove the proposed lease, the commissioner shall return to the bidder the sum deposited.
Source: SL 1917, ch 339, § 10; RC 1919, § 5642; SL 1923, ch 257; SDC 1939, § 15.0407; SL 1967, ch 35; SL 1994, ch 47, § 3.
5-5-16. Rent payable annually in advance to commissioner.
Except as otherwise provided, the rent for all leased lands must be paid annually in advance and must be promptly paid when due, to the commissioner of school and public lands.
Source: SL 1917, ch 339, § 12; RC 1919, § 5644; SL 1933, ch 172, § 1; SDC 1939, § 15.0409; SL 1988, ch 49, § 1.
5-5-17. Action to recover delinquent rent or forfeit lease--Prosecution of action--Proceeds of action.
Whenever any lessee shall fail to pay the annual rental for any lands leased when the same becomes due, it shall be optional with the commissioner of school and public lands to bring suit against such lessee in any court of competent jurisdiction in the county in which the land is situated, for the recovery of such rental, damages, and costs occasioned by such failure, or to declare such lease forfeited and to proceed to offer such lands for lease.
In case the commissioner considers it to the interest of the state to commence suit against such lessee, it is hereby made the duty of the state's attorney of such county to commence and prosecute such suit whenever he is directed to do so by the commissioner. All money arising from such suit shall be paid into the county treasury of the proper county and be placed to the credit of the interest and income fund of the class to which such lands belong.
Source: SL 1917, ch 339, § 13; RC 1919, § 5645; SL 1921, ch 358; SDC 1939, § 15.0410.
5-5-18. Agricultural lessee to clear weeds and pests.
Any person leasing school or endowment lands for agricultural purposes shall destroy all noxious weeds and pests on any lands so leased pursuant to chapter 38-22.
Source: SL 1917, ch 339, §§ 14, 16; RC 1919, §§ 5646, 5648; SDC 1939, § 15.0411; SL 1985, ch 37, § 4.
5-5-19. Waste and burning on leased lands prohibited--Action for forfeiture and damages.
No lessee of land for agricultural purposes shall burn or permit to be burned any hay, straw, stubble, or cornstalks on the land covered by his lease, and the commission of such waste or any other waste upon any such land by the lessee shall cause a forfeiture of the lease and shall render the lessee liable to the state for damages caused by such waste. Actions to enforce the provisions of this section shall be prosecuted by the state's attorney of such county, whenever he is directed so to do by the commissioner of school and public lands, in any court of competent jurisdiction of the county in which the land is situated.
Source: SL 1917, ch 339, § 17; RC 1919, § 5649; SDC 1939, § 15.0413.
5-5-20. Assignment of lease--Approval required--Form--Filing--Fee--Subletting prohibited--Double damages for subletting.
The lessee of any school or endowment lands may assign his lease to any third person; but before any such assignment of a lease is effective, the assignment shall be approved by the commissioner of school and public lands and a copy thereof filed by the commissioner. The commissioner shall prescribe the form to be used for such assignment and shall fix a reasonable fee for filing, recording and approval of it. The subletting of any school and endowment lands by the lessee thereof for profit is prohibited. Such subletting shall be cause for the forfeiture of the lease and shall render the lessee liable to the state for damages in double the amount of the difference between the lease rental and the amount paid or agreed to be paid from the sublessee.
Source: SL 1917, ch 339, § 21; RC 1919, § 5653; SDC 1939, § 15.0417; SL 1951, ch 44; SL 1984, ch 36, § 1.
5-5-21. Action to enforce prohibition against subletting--Disposition of proceeds.
Any action to enforce the provisions of § 5-5-20 shall be prosecuted by the state's attorney of the county, if the state's attorney is directed so to do by the commissioner, in any court of competent jurisdiction of the county in which the land is situated. The gross amount awarded by the court shall be paid to the commissioner and credited to the same account and in the same manner as the lease rental on the lands is credited.
Source: SDC 1939, § 15.0417 as added by SL 1951, ch 44; SL 1994, ch 47, § 4.
5-5-22. Permit for improvements and conservation activities by lessee--Right of removal--State not liable for material or labor.
In offering any land for leasing or at any time after the lease has been made, the commissioner of school and public lands may grant to any lessee of land under the provisions of this chapter a permit to erect thereon such buildings, corrals, fences, and well apparatus as may be necessary to fully carry out the purposes of the lease, and such lessee may remove such improvements as are capable of removal without damage to the land at any time before the expiration of the term or upon cancellation of the lease, and during a period of sixty days from the date upon which such land is offered for releasing or sale, and may sink such wells and construct such dams thereon as may be necessary, the cost of which may not exceed an amount agreed upon by the commissioner. In addition, the commissioner of school and public lands may grant in like manner a permit to prepare the ground and to plant shelter belts on such land, and to perform government approved ripping, furrowing, contouring, and reseeding. However, the lessee shall notify the county auditor and the commissioner of school and public lands in writing whenever any such improvements are placed upon such lands. In no event is the state liable for any material furnished for, nor for any labor performed on, such improvements.
Source: SL 1917, ch 339, § 18; RC 1919, § 5650; SDC 1939, § 15.0415; SL 1941, ch 52; SL 1943, ch 51; SL 1957, ch 44; SL 1966, ch 36; SL 1985, ch 37, § 5.
5-5-23. State ownership of improvements not removed--Permit renewed by new lease by same lessee.
If such improvements are not removed in the manner and within the time specified in § 5-5-22 or within such further period as may be granted by the commissioner of school and public lands for good cause shown, or unless such improvements are disposed of as hereinafter provided, then such improvements shall become the property of the state without further consideration. In the event that any lessee, who, upon the expiration of his lease, re-leases such tract of land at the letting, any permit for improvements previously issued and his rights to the same shall be automatically renewed for the period of time covered by such new lease without any further action on the part of such lessee.
Source: SL 1917, ch 339, §§ 18, 19; RC 1919, §§ 5650, 5651; SL 1923, ch 254; SDC 1939, § 15.0415; SL 1941, ch 52; SL 1943, ch 51; SL 1957, ch 44.
5-5-24. Permit for fall tillage, weed control and planting in final year of lease--Valuation by board of appraisal.
After the first day of September of the last year of such lease on land for agricultural purposes, the lessee may apply for and may receive a permit from the commissioner of school and public lands in the same manner as other permits for improvements are granted for fall tillage or chemical weed control for the planting of a crop the following spring, and in addition thereto the cost of the planting of a crop in the fall.
In no case may the permit exceed the actual cost of tillage or chemical weed control on the land, and in case the land is seeded in the fall, not more than the actual additional cost of the seed and the seeding of the same.
Such permit has the full force and effect of permits for other improvements and shall be handled in like manner.
In the event a board of appraisal as hereinafter provided is required to appraise the value of such improvements, they may not take into consideration the value of any crop growing on the lands covered by a permit but shall appraise only the cost of preparing the land and seeding the same.
Source: SDC 1939, § 15.0415 as added by SL 1941, ch 52; SL 1943, ch 51; SL 1957, ch 44; SL 1985, ch 37, § 6.
5-5-25. Notice to lessee of expiration of lease--Rental rate for extension.
The commissioner shall notify each lessee by certified or registered mail directed to his post office address, as shown by the records in the office of the commissioner, on or before the first day of November first preceding the expiration of each lease that such lease will expire the following March first. Such notice shall be made in triplicate and two copies thereof mailed to the lessee.
The commissioner shall state in such notice the rental rate at which such lease can be extended for an additional five years. Such rate for grazing leases shall be the current rental on common school, indemnity, and endowment lands at the time of the issuance of the notice to the lessee. Such rate for agriculture leases shall be as provided for in § 5-5-6.1.
Source: SL 1949, ch 71, § 3; SDC Supp 1960, § 15.0405-3; SL 1985, ch 37, § 7.
5-5-27. Extension or renewal on application by lessee--Cancellation of lease on failure to renew.
If the lessee wishes to exercise the option to receive a new lease, the lessee shall sign one copy of the duplicate notice mailed to the lessee by the commissioner. The lessee shall return it to the commissioner on or before the first day of December preceding the expiration date of the lease. Upon receipt of the signed option, the commissioner shall grant a five-year extension or renewal. The lease may be canceled if the lessee fails to return the notice to the commissioner on or before the first day of December.
Source: SL 1949, ch 71, § 5; SDC Supp 1960, § 15.0405-5; SL 1984, ch 37; SL 1994, ch 47, § 5; SL 1998, ch 29, § 1.
5-5-28. Permit to new lessee to enter for fall tillage, weed control, and planting--Protection of original lessee.
Whenever the commissioner of school and public lands shall offer any school or endowment agricultural lands for re-leasing before the expiration of an existing lease and the lands are leased to any person other than the holder of the unexpired lease, such lease shall permit the new lessee to enter upon such land for the purpose of fall tillage, chemical weed control, and planting, such commissioner being careful to prescribe proper rules and regulations for safeguarding the rights of the holder of the unexpired lease.
Source: SL 1917, ch 339, § 12; RC 1919, § 5644; SL 1933, ch 172, § 1; SDC 1939, § 15.0409; SL 1985, ch 37, § 9.
5-5-29. Deposit by new lessee or purchaser to cover improvements--Election by owner to remove improvements.
If any permitted improvement is located on any school or endowment land and the land has been offered for lease or sale and a person other than the owner of the improvement is the highest bidder, the bidder shall deposit with the county auditor a receipt showing payment of the amount due before the lease or sale is made. In addition, the highest bidder shall deposit with the county treasurer an amount equal to the appraised value of each improvement as determined by the board of appraisal or an amount agreed between the successful bidder and the owner of the improvement. The owner of the improvement may elect to remove the improvement.
Source: SL 1917, ch 339, § 19; RC 1919, § 5651; SL 1923, ch 254; SDC 1939, § 15.0416; SL 1971, ch 29, § 1; SL 2018, ch 45, § 1.
5-5-30. Application by owner of improvements for appraisal--Deposit for cost of appraisal.
If the owner of the improvement described in § 5-5-29 elects not to remove the improvement and the owner does not agree with the successful bidder on the value of the improvement, the owner shall within five business days from the date on which the land is offered for lease or sale make application to the county auditor asking for the appraisal of the improvement by a board of appraisal. The county auditor shall appoint the board members pursuant to § 5-5-31. The owner shall make a deposit sufficient to cover the cost of appraisal as determined by the county auditor. The board members shall be paid by the county auditor from the amount deposited by the owner.
Source: SL 1917, ch 339, § 19; RC 1919, § 5651; SL 1923, ch 254; SDC 1939, § 15.0416; SL 2018, ch 45, § 2.
5-5-31. Appraisal of improvements--Composition and appointment of board--Report of appraisal--Immunity from liability.
Any improvement on any school or endowment land shall be appraised by a board of three disinterested freeholders who shall be residents of the county where the property is located. The board of appraisal shall be constituted as follows: the owner of the improvement shall nominate a person to represent the owner, the new lessee or purchaser shall nominate a person to represent the lessee or purchaser, and the two nominees shall nominate a person to serve on the board. The county auditor shall appoint these three persons as a board.
The commissioner of school and public lands shall provide the board with an itemized list of each permitted improvement. Each improvement shall be appraised based on the original cost basis less any depreciation as determined by the board. The original cost of the improvement may include only the actual out-of-pocket expenses paid by the lessee for the improvement. The original cost may not include the amount of any grant, subsidy, or contribution toward the expense of the improvement from another source. The board shall file with the county auditor an itemized report of the appraisal, signed by at least two members of the board. The county auditor shall keep a record of the appraisement. The board shall be paid at the state rate established pursuant to chapter 3-9 for per diem and mileage necessarily traveled in making the appraisal.
The members of the board are immune from suit and liability, either personally or in their official capacity, for any claim for damage to or loss of property or personal injury or other civil liability caused by or arising out of any actual or alleged act, error, or omission that occurred, or that the person against whom the claim is made had a reasonable basis for believing occurred, within the scope of the board's duties or responsibilities. Nothing in this section may be construed to protect any person from suit or liability for any damage, loss, injury, or liability caused by the intentional, willful, or wanton misconduct of that person.
Source: SL 1917, ch 339, § 6; RC 1919, § 5638; SDC 1939, § 15.0414; SL 1963, ch 65; SL 1967, ch 36; SL 1984, ch 34, § 9; SL 2018, ch 45, § 3.
5-5-32. Acceptance or rejection of appraisal.
If any permitted improvement is appraised pursuant to § 5-5-31, the owner of the improvement shall accept or reject the appraisal by written notice to the county auditor within five business days from the date of the appraisal or the appraisal is deemed rejected and a lease or conveyance shall be made.
Source: SL 1917, ch 339, § 19; RC 1919, § 5651; SL 1923, ch 254; SDC 1939, § 15.0416; SL 1971, ch 29, § 2; SL 2018, ch 45, § 4.
5-5-33. Hunting in crops on school and public lands prohibited--Exception.
No person may engage in hunting in any standing, unharvested crops on any school and public lands, unless the crop is designated for conservation or wildlife habitat.
Source: SL 2003, ch 32, § 1.
5-6-1
Sale of growing timber authorized--Rules and regulations.
5-6-2 to 5-6-12. Repealed.
5-6-13
Determination by state forester of amount of forest products to be harvested.
5-6-14
Conduct by state forester of sales of forest products.
5-6-15
Crediting proceeds of sales of forest products.
5-6-1. Sale of growing timber authorized--Rules and regulations.
The commissioner of school and public lands may sell timber growing upon any school lands now owned or which may hereafter be acquired by the state when in his judgment it is conducive to the best interests of the state to sell such timber under such rules and regulations as he may establish.
Source: SL 1911, ch 224, § 70; RC 1919, § 5670; SL 1923, ch 259, § 1; SDC 1939, § 15.0317; SL 1978, ch 42, § 1.
5-6-13. Determination by state forester of amount of forest products to be harvested.
The commissioner of school and public lands may authorize the state forester to determine the amount of forest products to be harvested from school and endowment lands in accordance with § 41-20-8.
Source: SL 1978, ch 42, § 2.
5-6-14. Conduct by state forester of sales of forest products.
The commissioner of school and public lands may authorize the state forester to conduct sales of forest products on school and endowment lands in accordance with rules or regulations of the Game, Fish and Parks Commission.
Source: SL 1978, ch 42, § 3.
5-6-15. Crediting proceeds of sales of forest products.
All proceeds from the sale of forest products on school and endowment lands shall be credited to the income fund of the class of land from which the forest product was harvested.
Source: SL 1978, ch 42, § 4.
5-7-1
Commissioner of school and public lands to conduct leasing of state-owned mineral
interests.
5-7-2
Advertising and auction of mineral leases--Exemptions.
5-7-3
Lands subject to lease.
5-7-4
Right of entry to prospect for and remove minerals.
5-7-4.1
Lease required to explore for minerals--Civil penalty--Publication of data collected--Judicial remedies for enforcement.
5-7-5
Repealed.
5-7-6
Oil, gas, and geothermal resources not subject to provisions--Exemption of lands sold
prior to reservation.
5-7-7, 5-7-7.1. Repealed.
5-7-8
Priority to receive permit determined by application date.
5-7-8.1, 5-7-8.2. Repealed.
5-7-9
Repealed.
5-7-10
Repealed.
5-7-11
Repealed.
5-7-11.1
Repealed.
5-7-12, 5-7-13. Repealed.
5-7-14
Repealed.
5-7-15
Repealed.
5-7-16
Right of lease holder to enter sold or leased lands.
5-7-17
Repealed.
5-7-17.1
Disposition of payments for damages.
5-7-18
Oil and gas leases--Casing-head gas included.
5-7-19
Oil, gas, and geothermal exploration, development and production leases authorized.
5-7-20
Application for oil, gas, or geothermal lease--Tender of annual rental and bonus--Form and contents of application.
5-7-21
Advertising of oil and gas or geothermal leases--Conduct of auction.
5-7-22
Withholding of tracts from oil, gas, other mineral or geothermal resources leasing.
5-7-23
Term of oil and gas leases--Resumption of drilling operations after cessation of
production.
5-7-23.1
Term of geothermal leases.
5-7-24
Royalty provisions in oil and gas leases--Annual rental.
5-7-24.1
Royalty provisions in geothermal leases--Renegotiation--Annual rental.
5-7-25
Customary provisions inserted in leases for protection of state and surface owners
and lessees.
5-7-25.1
Geothermal resources--Additional provisions applicable to.
5-7-26
Leases assignable--Minimum tract assignable.
5-7-27
Execution and acknowledgment of assignments of leases--Filing and recordation--Form and fees.
5-7-28
Grounds for refusal to approve assignment of lease.
5-7-29
Effect of approved assignment of lease.
5-7-30
Grounds for cancellation of lease--Notice of intent to cancel and opportunity to
remedy default.
5-7-31
Correction of mistaken land descriptions in leases.
5-7-32
Pooling agreements on behalf of state authorized.
5-7-33
Deposit of collections from leases in treasury.
5-7-1. Commissioner of school and public lands to conduct leasing of state-owned mineral interests.
The commissioner of school and public lands shall conduct all leasing of mineral interests owned by the state, or held in trust by the state, including school, indemnity, and endowment lands, rural credit lands, lands owned by the state and administered by the Department of Game, Fish and Parks, the Board of Regents or any other mineral interest of any kind in the state or any of its departments or institutions. However, with respect to lands administered by the Department of Game, Fish and Parks, the consent of the department shall be obtained.
Source: SL 1953, ch 72, § 1; SDC Supp 1960, § 15.0516 (1); SL 1989, ch 20, § 57.
5-7-2. Advertising and auction of mineral leases--Exemptions.
It is hereby specifically provided that all leases for prospecting for, producing, and marketing oil and gas, geothermal resources, bentonite, and gypsum, shall be, and for feldspar, mica, coal, and all other minerals or combinations thereof, may be, issued after advertising and sale at public auction to the highest bidder. The public auction may be an electronic event that is advertised and made available to the public via the internet. The sale of sand, gravel, rock, stone, clay, shale, and lake sediment are specifically exempted from the provisions of this section.
Source: SL 1953, ch 72, § 2; SL 1955, ch 47, § 1; SDC Supp 1960, § 15.0517; SL 1980, ch 40, § 2; SL 1980, ch 42, § 1; SL 1998, ch 30, § 1; SL 2019, ch 46, § 1.
5-7-3. Lands subject to lease.
All coal, ores, asphaltum, metals, minerals, and other metallic or mineral products in or upon lands belonging to the state or in lands which subsequent to July 1, 1919, were or may hereafter be sold, granted, conveyed, or leased for agricultural, meadow, pasturage, or other purposes, or in any way transferred by the state, are subject to lease by the state, except as provided in this chapter.
Source: SL 1919, ch 305, § 1; SL 1931, ch 203, § 13; SDC 1939, § 15.0501; SL 1980, ch 42, § 2; SL 1993, ch 53, § 21.
5-7-4. Right of entry to prospect for and remove minerals.
The state and all persons claiming under it shall have the right to enter upon such lands and to prospect for, mine, sell, and remove such coal, ores, asphaltum, metals, minerals, and other metallic and mineral products and for such purpose to construct all necessary roads, buildings, and improvements thereon, including machinery for mining or removing such coal, ores, asphaltum, metals, minerals, and other metallic and mineral products in such lands.
Source: SL 1919, ch 305, § 1; SL 1931, ch 203, § 13; SDC 1939, § 15.0501.
5-7-4.1. Lease required to explore for minerals--Civil penalty--Publication of data collected--Judicial remedies for enforcement.
No person may conduct mineral exploration upon state lands, including lands in which the state has a mineral interest, without obtaining a lease under the provisions of this chapter. Any person who violates this section is subject to a civil penalty of not more than one thousand dollars for each day of violation. All data collected on any state lands as a result of such violation shall be made immediately available to the commissioner of school and public lands who shall make such data available to the public as soon as practicable. The penalty may be collected by means of a civil action brought in the circuit court for the county in which any of the affected state lands are found or in the circuit court for Hughes County. The right of the commissioner to any data may be enforced by the circuit court through appropriate injunctive relief.
Source: SL 1978, ch 43, § 2; SL 1993, ch 53, § 22.
5-7-6. Oil, gas, and geothermal resources not subject to provisions--Exemption of lands sold prior to reservation.
The provisions of §§ 5-7-3, 5-7-4, 5-7-4.1, 5-7-6, 5-7-8, and 5-7-16 shall not apply to oil and gas, or geothermal resources, and shall not apply to lands sold prior to the reservation of such coal, ores, asphaltum, metals, minerals, and other metallic and mineral products.
Source: SL 1919, ch 305, § 1; SL 1931, ch 203, § 13; SDC 1939, § 15.0501; SL 1980, ch 40, § 3.
5-7-8. Priority to receive permit determined by application date.
Priority to receive a permit on each tract, as provided in § 5-7-45, shall be determined by the certification date on the application. The commissioner of school and public lands shall issue the lease accordingly.
Source: SDC 1939, § 15.0503 as added by SL 1953, ch 43, § 1; SL 1975, ch 48, § 2; SL 1993, ch 53, § 26.
5-7-16. Right of lease holder to enter sold or leased lands.
In all cases where state lands have been sold subject to the reservation regarding coal, ores, asphaltum, metals, and mineral rights referred to in § 5-7-3 and in all cases where such lands have been leased for agricultural, meadow, pasturage, or other purposes, pursuant to the provisions of law, the holder of any lease subsequently issued thereon may nevertheless enter upon the same and prospect thereunder.
Source: SL 1919, ch 305, § 5; SL 1931, ch 203, § 13; SDC 1939, § 15.0504; SL 1993, ch 53, § 34.
5-7-17.1. Disposition of payments for damages.
Any agreed payments for damages to the lease between the holder and the lessee shall be approved or disapproved by the commissioner of school and public lands and shall be paid fifty percent to the lessee and fifty percent to the state.
Source: SL 1984, ch 38, § 1.
5-7-18. Oil and gas leases--Casing-head gas included.
Where the term "oil and gas" is used in §§ 5-7-19 to 5-7-33, inclusive, it shall be construed to mean "oil, gas, and casing-head gas."
Source: SDC 1939, § 15.0510 as added by SL 1941, ch 53, § 1.
5-7-19. Oil, gas, and geothermal exploration, development and production leases authorized.
The commissioner of school and public lands may execute and issue in the name of the State of South Dakota, as lessor, under rules and regulations prescribed by the commissioner, leases for the exploration and development of, and production of, oil, gas, or geothermal resources from any lands belonging to the State of South Dakota, including lands which have been or may hereafter be sold by the state with the reservation of the minerals in the land. Such leases to be issued upon such terms and conditions as the commissioner may deem to be to the best interests of the state and not inconsistent with the provisions of §§ 5-7-20 to 5-7-37, inclusive.
Source: SL 1931, ch 203, § 1; SDC 1939, § 15.0507; SL 1980, ch 40, § 4.
5-7-20. Application for oil, gas, or geothermal lease--Tender of annual rental and bonus--Form and contents of application.
Applications for the issuance of any such oil, gas, or geothermal resources lease shall be executed under oath by the applicant, or his agent or attorney duly authorized in writing, or by any officer or attorney in fact of the corporation, if the application is made by a corporation. The application shall be accompanied by a certified check, bank draft, or money order in the amount of the annual delay rental for one year and the bonus offered, if any.
The form of the application shall be prescribed by the commissioner of school and public lands and all applications shall contain a description of the lands by legal subdivisions upon which the lease is desired, together with such data and information concerning development on and in the vicinity of the land as may reasonably be required by the commissioner. No lease shall be issued for less than the amount offered by the applicant as a bonus, if any, and the annual delay rental for one year.
Source: SL 1931, ch 203, § 5; SDC 1939, § 15.0508; SL 1953, ch 44, § 1; SL 1980, ch 40, § 5.
5-7-21. Advertising of oil and gas or geothermal leases--Conduct of auction.
Whenever an application is made for such an oil and gas or geothermal resources lease the commissioner of school and public lands shall advertise the lands for lease by the publication, once in each week for at least two successive weeks in a newspaper of general circulation published in the county where the lands are located, if there be one, or if there be none, in such newspaper as will be most likely to give notice of the leasing, of a notice stating the time and place at which the leasing of such lands will be held. The commissioner shall conduct the letting at public auction. The commissioner may establish such rules and regulations as in his judgment shall be necessary in order that the lands may be leased most profitably for the state and to carry out the provisions of this chapter. The lands shall be leased to the highest bidder but the commissioner shall have the right to reject any or all bids.
Source: SDC 1939, § 15.0510 as added by SL 1941, ch 53, § 1; SL 1972, ch 28, § 2; SL 1980, ch 40, § 6.
5-7-22. Withholding of tracts from oil, gas, other mineral or geothermal resources leasing.
Nothing contained in this chapter shall be construed as requiring the commissioner of school and public lands to offer any tract of land for lease, nor to lease the same, but the commissioner may withhold any tract from leasing for oil, gas, other mineral or geothermal resources purposes if, in his opinion, the best interests of the state shall be served by so doing.
Source: SL 1931, ch 203, § 7; SDC 1939, § 15.0515; SL 1980, ch 40, § 7; SL 1980, ch 42, § 6.
5-7-23. Term of oil and gas leases--Resumption of drilling operations after cessation of production.
The term of all such oil and gas leases shall be for a period not to exceed ten years and as long thereafter as oil or gas is produced from the leased land. In no event, however, shall such leases covering lands granted to the state of South Dakota by the Enabling Act of February 22, 1889, or by later congressional act, be for terms longer than as provided in said acts as subsequently amended or to be amended. If for any reason production of oil or gas from the leased lands shall cease after the primary term the lessee shall be entitled to resume drilling operations on said land within such reasonable time as may be prescribed by the rules and regulations of the commissioner of school and public lands, and if such drilling operations shall be conducted with reasonable diligence and the production of oil and gas in paying quantities shall result therefrom, then said lease shall remain in force as long thereafter as oil or gas in paying quantities is or can be produced from the leased lands.
Source: SL 1931, ch 203, § 2; SDC 1939, § 15.0510; SL 1941, ch 53, § 1.
5-7-23.1. Term of geothermal leases.
The term of all geothermal leases shall be for a period not to exceed ten years and as long as geothermal resources are produced from the leased lands.
Source: SL 1980, ch 40, § 8.
5-7-24. Royalty provisions in oil and gas leases--Annual rental.
All such leases shall provide for delivery to the state in the pipeline to which the lessee may connect the wells of a royalty of not less than one-eighth of the oil and gas produced, saved, and marketed from the leased lands, or the equivalent proportion of the market value of such oil and gas in the field at the time of production; provided, however, that no royalties shall be payable upon oil or gas used in operations on the land for the development and production of oil or gas therefrom.
All such leases shall provide for the payment of a reasonable annual rental, as fixed by the rules and regulations of the commissioner of school and public lands, but in no event to be less than ten cents per acre per annum.
Source: SL 1931, ch 203, § 2 (6); SL 1937, ch 213, § 1; SDC 1939, §§ 15.0509, 15.0510; SL 1941, ch 53, § 1; SL 1976, ch 57.
5-7-24.1. Royalty provisions in geothermal leases--Renegotiation--Annual rental.
All geothermal leases shall provide for the payments of royalty to the state. The royalty payments shall consist of:
(1) Not less than ten percent of the gross revenue, exclusive of charges, approved by the commissioner of school and public lands, that were made or incurred with respect to transmission or other services or processes, received from the sale of steam, brines, from which no minerals have been extracted, and associated gases at the point of delivery to the purchaser; and
(2) A royalty of five percent of the gross revenue, exclusive of charges, approved by the commissioner, that were made or incurred with respect to transmission or other services or processes, received from the sale of mineral products or chemical compounds recovered from geothermal fluids or chemical compounds.
All royalties shall be subject to renegotiation after ten years from the effective date of the lease and at ten-year intervals thereafter.
All geothermal leases shall provide for the payment of a reasonable annual rental, as fixed by the rules and regulations of the commissioner of school and public lands, but in no event to be less than one dollar per acre per year.
Source: SL 1980, ch 40, § 9.
5-7-25. Customary provisions inserted in leases for protection of state and surface owners and lessees.
The commissioner of school and public lands may insert in oil, gas, and geothermal resources leases such general provisions as are customary and proper for the protection of the rights of the state and of the lessee and of the owners of the surface of the leased land and not inconsistent or in conflict with the provisions of this chapter and of other laws.
Source: SL 1931, ch 203, § 9; SDC 1939, § 15.0510; SL 1941, ch 53, § 1.
5-7-25.1. Geothermal resources--Additional provisions applicable to.
The provisions of §§ 5-7-25 to 5-7-37, inclusive, apply to geothermal resources.
Source: SL 1980, ch 40, § 10.
5-7-26. Leases assignable--Minimum tract assignable.
All oil, gas, and geothermal resources leases shall be assignable in whole or in part, provided no assignment of less than a legal subdivision shall be recognized or approved by the commissioner of school and public lands. The term "legal subdivision" as used herein shall be construed in the ordinary sense as used and recognized in the Bureau of Land Management of the United States.
Source: SL 1931, ch 203, § 4; SDC 1939, § 15.0512.
5-7-27. Execution and acknowledgment of assignments of leases--Filing and recordation--Form and fees.
The assignments provided for in § 5-7-26 shall be executed and acknowledged in duplicate in the manner prescribed for conveyance of real estate in this state, and subject to recordation as other instruments conveying real estate and, in addition thereto, a duplicate original shall be filed in the office of the commissioner of school and public lands who shall record same in permanent form in his office as a public record and shall return the original to the person entitled thereto after recording. The approval of the commissioner shall be noted upon all originals of the assignment. The commissioner shall prescribe the form to be used for such assignments and shall fix a reasonable fee for the filing, recording, and approval of the same.
Source: SL 1931, ch 203, § 4; SDC 1939, § 15.0512.
5-7-28. Grounds for refusal to approve assignment of lease.
The commissioner of school and public lands shall have the right to refuse approval of any assignment not executed in proper form or by the proper person or persons, or when the lease is not in good standing as to the assigned tracts, or when litigation is pending affecting the lease or the interest of any person therein.
Source: SL 1931, ch 203, § 4; SDC 1939, § 15.0512.
5-7-29. Effect of approved assignment of lease.
Upon approval by the commissioner of school and public lands of an assignment, the assignor shall stand relieved from all obligations to the state with respect to the lands embraced in the assignment and the state shall likewise be relieved from all obligations to the assignor as to such tract or tracts, and thereupon, the assignee shall succeed to all of the rights and privileges of the assignor with respect to such tracts and shall be held to have assumed all of the duties and obligations of the assignor to the state as to such tracts.
Source: SL 1931, ch 203, § 4; SDC 1939, § 15.0512.
5-7-30. Grounds for cancellation of lease--Notice of intent to cancel and opportunity to remedy default.
The commissioner of school and public lands is hereby authorized to cancel any lease issued as provided in §§ 5-7-18 to 5-7-32, inclusive, for nonpayment of rentals or nonperformance by the lessee of any requirement of the lease. With the exception of the nonpayment of rentals on or before the date they are due, if any such cancellation shall be made, the commissioner must mail to the lessee or assignee, by registered or certified letter addressed to the post office address of such lessee or assignee shown by the records of the office of the commissioner, a notice of intention to cancel said lease, specifying the default for which the lease is subject to cancellation and if within thirty days after the mailing of said notice to the lessee or assignee he shall remedy the default specified in such notice, then no cancellation of said lease shall be ordered by the commissioner but, otherwise, the cancellation shall be made and all the rights of the lessee or assignee under the lease shall thereupon terminate. No notice of intention to cancel shall be required where the default is the nonpayment of rentals on or before the date they are due.
The mailing of the notice as provided in this section shall constitute notice of the intention of the commissioner to cancel the lease and no proof of receipt of such notice shall be necessary or required.
Source: SL 1931, ch 203, § 8; SDC 1939, § 15.0513; SL 1953, ch 45.
5-7-31. Correction of mistaken land descriptions in leases.
Whenever any person, firm, or corporation has been granted a lease or leases and has not tested or prospected the land so leased and a mistake has been made in the description of the land, there may be substituted therefor other land for that leased, under such rules and regulations as may be prescribed by the commissioner of school and public lands; provided however, that such application for such correction must be made within six months from the date of the lease.
Source: SL 1931, ch 203, § 11; SDC 1939, § 15.0514.
5-7-32. Pooling agreements on behalf of state authorized.
The commissioner of school and public lands is hereby authorized, in his discretion, to enter into agreements on behalf of the State of South Dakota for the pooling of acreage under his jurisdiction with other acreage for unit operations for the production of oil, gas, or geothermal resources and for the apportionment of oil, gas, or geothermal resources royalties on an acreage or other equitable basis.
Source: SL 1939, ch 164, § 1; SDC Supp 1960, § 42.0815; SL 1976, ch 20, § 3.
5-7-33. Deposit of collections from leases in treasury.
The commissioner of school and public lands shall deposit the money realized from leasing of mineral interests owned by the state, or held in trust by the state with the state treasurer and direct that such money be credited to the appropriate fund.
Source: SL 1953, ch 72, § 1; SDC Supp 1960, § 15.0516 (2); SL 1985, ch 39, § 2.
5-7-34. Apportionment of receipts from leasing of school, indemnity and endowment lands.
All money received from the leasing of all common school, indemnity, and endowment lands for oil and gas and other mineral or geothermal resources leasing of said lands shall be apportioned as follows:
Fifty percent shall be credited to the permanent school funds and fifty percent thereof into the several interest and income funds in the following proportions, to wit:
Common school 82.02289745
South Dakota State University 4.66838105
University of South Dakota 2.51170245
Educational and charitable .72960665
Department of Corrections, juvenile programs 1.16718575
School for Deaf 1.16728565
School for Blind and Visually Impaired .72952995
South Dakota Developmental Center--Redfield 1.16726135
School of Mines and Technology 1.16728735
Black Hills and Dakota State Universities 3.11243403
Northern State University 1.55642832
Source: SL 1955, ch 53; SL 1985, ch 39, § 3; SL 1989, ch 170, § 1; SL 1989, ch 238, § 4; SL 1998, ch 110, § 3; SL 2002, ch 132, § 3.
5-7-36. Records of mineral interests and leases maintained by commissioner.
The commissioner of school and public lands shall keep in his office a full and complete record of all lease lettings, sales, copies of all leases, a record of the payment of the rentals, a record of the assignment of the leases, a record of the acquisition of all mineral interests, a record of the royalties due and paid, and such other information as shall be determined by him to be of value to the State of South Dakota and the owners of mineral interests and leases.
Source: SL 1953, ch 72, § 1; SDC Supp 1960, § 15.0516 (4).
5-7-37. Rules and regulations governing leasing--Promulgation.
The commissioner of school and public lands shall from time to time promulgate such rules and regulations, not in conflict with any of the provisions of this chapter, as may be necessary or proper for carrying out such provisions governing the duties of the commissioner in executing leases of mineral, oil, gas, or geothermal resources rights, specifically prescribing forms to be used, fixing minimum bonus and rentals, and prescribing the method of sale, whether private or by public auction, or either or both.
Source: SL 1919, ch 305, § 9; SL 1931, ch 203, § 10; SDC 1939, § 15.0502.
5-7-38. Water law provisions applicable to certain geothermal leases.
All leases granted by the commissioner of school and public lands for the development of geothermal resources for industrial or commercial heating or production of electricity or minerals in solution, are subject to all of the provisions of chapters 46-5 and 46-6, inclusive.
Source: SL 1980, ch 40, § 12.
5-7-39. Validation of oil and gas leases prior to July 1, 1981.
Any oil and gas lease executed by the Governor and the commissioner of school and public lands prior to July 1, 1981, is, notwithstanding any omissions, irregularities, or defects in the procedures, including publications, taken by the State of South Dakota in leasing the same, hereby validated and cured to the extent that the lease shall operate to convey to the person named as the lessee in the lease all of the rights provided in the lease.
Source: SL 1982, ch 51, § 1.
5-7-40. Limitation of actions to contest validity of oil and gas leases.
If any person has a vested right in any real property leased and desires to contest the validity of an oil and gas lease and no action to enforce such right is begun before July 1, 1983, such right shall be forever barred. No action so brought shall be of any force or effect, or maintained in any court in this state, unless before July 1, 1983, there is recorded in the office of the register of deeds of the county in which the real estate is situated, a notice of pendency of such action, in accordance with the provisions of chapter 15-10.
Source: SL 1982, ch 51, § 2.
5-7-41. Assignment of certain state-owned minerals to oil and gas royalty increment status--Required findings.
The commissioner of school and public lands may, upon his own motion or upon petition by an interested person assign, specific state-owned minerals to oil and gas royalty increment status. The assignment shall be made pursuant to the contested case requirements of chapter 1-26 and shall include a legal description of the state mineral lands assigned the status and a specific term, under ten years, during which the lands may be leased as on an oil and gas royalty increment status. The assignment may be made only upon a finding by the commissioner that:
(1) There has been no oil or gas production on the state-owned mineral land proposed to be assigned royalty increment status, and on private or federal minerals within the immediate area;
(2) There has been no oil or gas lease issued on the state-owned mineral land proposed to be assigned royalty increment status within the last ten years;
(3) There has been no oil or gas prospecting permit issued for the state-owned mineral land proposed to be assigned royalty increment status within the last five years;
(4) There has been no exploration permit for oil or gas issued by the Department of Agriculture and Natural Resources in the immediate area of the state-owned mineral land proposed to be assigned royalty increment status within the last five years;
(5) The assignment of oil and gas royalty increment status to the state-owned minerals may encourage the development of oil or gas reserves on those lands; and
(6) The assignment will not have a substantial impact on privately owned minerals within the immediate area surrounding the state-owned mineral land proposed to be assigned royalty increment status.
Source: SL 1992, ch 43, § 1; SL 2021, ch 1 (Ex. Ord. 21-3), § 14, eff. Apr. 19, 2021.
5-7-42. Amount of royalty for leases of lands assigned oil and gas royalty increment status.
Notwithstanding the provisions of § 5-7-24, the commissioner may offer oil and gas leases for lands assigned oil and gas royalty increment status with a royalty of one-sixteenth of the oil and gas produced, saved and marketed from the leased lands for the first three years of the lease. The royalty on the lease shall automatically increase to one-twelfth of the oil and gas produced, saved and marketed from the leased lands for the second three years of the lease. Thereafter, the royalty on the lease shall automatically increase to a minimum of one-eighth of the oil and gas produced, saved and marketed from the leased lands, as established by the commissioner. All other terms of the oil and gas lease for state minerals assigned royalty increment status shall be the same as the standard oil and gas lease for state minerals.
Source: SL 1992, ch 43, § 2.
5-7-43. Royalty increments for commingled lands assigned oil and gas royalty increment status.
The royalty increments of an oil and gas lease for lands assigned royalty increment status may not be altered due to the shut-in of a well. If the mineral lands assigned oil and gas royalty increment status are pooled, unitized, or otherwise commingled with production from other areas, the royalty increment status assignment shall automatically expire and the royalty on the involved state minerals shall automatically increase to a minimum of one-eighth of the oil and gas produced, saved, and marketed from the leased lands, as established by the commissioner.
Source: SL 1992, ch 43, § 3.
5-7-44. Leases offered only during term of royalty increment status.
Royalty increment status leases may be offered only during the term in which the state-owned minerals are assigned royalty increment status.
Source: SL 1992, ch 43, § 4.
5-7-45. Commissioner authorized to issue leases for prospecting, exploration and mining.
The commissioner may execute and issue in the name of the State of South Dakota, as lessor, leases for the sole and exclusive purpose of prospecting, exploration, and mining of all minerals upon or from any public lands over which the commissioner has jurisdiction, direction, control, care, and disposition under the constitution and laws of the State of South Dakota, such leases to be issued upon such terms and conditions as the commissioner may deem to be in the best interests of the State of South Dakota and not inconsistent with the provisions of this chapter.
Source: SL 1993, ch 53, § 1.
5-7-46. Penalties for fraud.
Any lessee of mineral lands under this chapter who conceals, or attempts to conceal any sale of ores or mineral products derived therefrom on which a royalty is payable, or who defrauds, or attempts to defraud, the state out of any such royalty is subject to a civil penalty of not more than one thousand dollars for each day of violation. In addition, such civil penalty does not operate as a bar to the collection of amounts owed to the state by such lessee; and his lease shall be forfeited in the manner provided in this chapter.
Source: SL 1993, ch 53, § 2.
5-7-47. Inspection of records.
The commissioner may inspect all records or books of account pertaining to the mining, extraction, transportation, reduction, and returns of all ores taken from such leased lands.
Source: SL 1993, ch 53, § 3.
5-7-48. Preferential right of lessee to renew or purchase leased lands.
Any lessee of lands subject to a mineral lease, or the heirs, successors or assigns of such lessee, have a preferential right to renew the lease or to purchase or lease any estate in such lands that the state intends to sell, lease, or otherwise dispose of during the term of the mineral lease on the same terms and conditions as the state otherwise intends to lease, sell, or otherwise dispose of such estate. If the mineral lessee does not exercise such preferential right and the commissioner sells or leases any estate in such lands subject to a mineral lease, including an estate or lease for agricultural, meadow, pasturage, or other purposes, the rights of the purchaser or lessee of such estate are subordinate to the rights of the mineral lessee.
Source: SL 1993, ch 53, § 4.
5-7-49. Definitions.
The term, minerals, as used in this chapter means all mineral deposits, whether lode, placer, or otherwise. The term, lessee, as used in this chapter includes an assignee under an approved assignment. The term, legal subdivision, as used in this chapter, has its ordinary meaning, as used and recognized by the Bureau of Land Management of the United States and the Office of School and Public Lands of the State of South Dakota.
Source: SL 1993, ch 53, § 5.
5-7-50. Validity of leases prior to 1993 amendments to this chapter.
All prospecting permits and leases issued prior to July 1, 1993 which have not expired, or which have not been canceled legally for nonperformance, are hereby declared to be valid and existing contracts with the State of South Dakota according to their terms and provisions, and the commissioner shall accept and recognize all such permits and leases according to their terms and provisions.
Source: SL 1993, ch 53, § 6.
5-7-51. Relinquishment of prospecting permit.
Any legal owner of any prospecting permit issued by the commissioner prior to July 1, 1993, if not in default of any of the provisions thereof, may relinquish such permit to the state and, upon application filed at the time of filing such relinquishment, the commissioner shall issue a lease in accordance with the provisions of this chapter.
Source: SL 1993, ch 53, § 7.
5-7-52. Term of permit--Primary and secondary terms--Tertiary and quaternary terms--Royalties.
All leases issued under these provisions shall be for a primary term of three years and as long thereafter as any mineral or minerals in paying quantities be produced or mined from the lands, subject to the continued payment of annual rentals.
If the lessee fails to discover and produce minerals in paying quantities during the primary term of the lease, the lessee may continue the lease in full force and effect for an additional or secondary term of two years and as long thereafter as any mineral or minerals in paying quantities be produced or mined from the leased land, by paying each year in advance two times the rental provided in the primary term.
However, if the lessee fails to discover and produce minerals in paying quantities during the secondary term of the lease, the lessee of record or the record owner of an approved assignment may continue the lease, as to the portion held by him, in full force and effect for an additional or tertiary term of five years and so long thereafter as any mineral or minerals in paying quantities be produced or mined from the leased land, by paying each year in advance not less than three dollars per acre per year as rental.
If the lessee fails to discover and produce minerals in paying quantities during the tertiary term of the lease, the lessee of record or the record owner of an approved assignment may continue the lease, as to the portion held by him, in full force and effect for an additional or quaternary term of five years and so long thereafter as any mineral or minerals in paying quantities be produced or mined from the leased land, by paying each year in advance of the lease anniversary date not less than ten dollars per acre per year as rental, plus a sum as advance royalty computed as follows:
For the eleventh year, not less than ten dollars per acre per year;
For the twelfth year, not less than twenty dollars per acre per year;
For the thirteenth year, not less than thirty dollars per acre per year;
For the fourteenth year, not less than forty dollars per acre per year; and
For the fifteenth year, not less than fifty dollars per acre per year.
However, upon the commencing of the production of minerals in paying quantities, the principal sum so paid as advance royalty for the lease year in which the mineral is produced and the advance royalty paid for the two previous years shall be credited against the royalty payable to the lessor.
Source: SL 1993, ch 53, § 8.
5-7-53. Conditions warranting suspension of license--Effective date--Term of suspension.
In all cases where the lessee of a valid lease issued under these provisions, or the record owner of an approved assignment of such lease, provides to the commissioner of school and public lands proof of discovery on such lease of an ore body containing valuable mineral deposits deemed to be of merchantable quality and quantity and the lessee has established commercial production on lands subject to the lease, the commissioner of school and public lands upon proper application by the lessee or the record owner and after notice and hearing shall authorize a suspension of the lease during either the primary, secondary, tertiary, quaternary, or indeterminable terms of such lease for such period as may be fixed by him if the commissioner is satisfied that:
(1) Marketing conditions beyond the control of the lessee are such that the leased land cannot be mined and the ore marketed except at a loss; or
(2) Temporary conditions exist beyond the control of the lessee, with regard to the leased land then being mined which would operate to prevent the mining of the ore in keeping with safe mining practices.
A suspension authorized by the commissioner pursuant to the provisions of this section shall take effect as of the date of the commissioner's decision and shall suspend the lease for the period of such suspension, but in no event may any single suspension be for a period longer than five years.
All obligations of the lessee under a lease suspended pursuant to the provisions of this section are suspended, including the payment of rentals and advance royalties. However, the lessee shall pay an annual rental of not less than sixty dollars per acre per year for each year of suspension.
Source: SL 1993, ch 53, § 9.
5-7-54. Annual rental--Minimum.
All leases issued by the commissioner shall provide for an annual rental to be paid by the lessee in advance, the amount thereof to be fixed by the commissioner, but in no case may the annual rental be less than one dollar per acre for the primary term nor less than two dollars per acre for the secondary term. The annual rental for any one lease may not be less than ten dollars.
Source: SL 1993, ch 53, § 10.
5-7-55. Payment of royalty--Amount.
In addition to the annual rental, the lessee shall pay to the commissioner a royalty of not less than two percent of the gross returns from the sale of ores and mineral products derived therefrom, less reasonable transportation and smelting or reduction charges, if any, and such other customary and appropriate charges as determined by the commissioner by rules promulgated pursuant to chapter 1-26, of all ores or materials mined and extracted from the land. In addition, the lessee shall pay to the commissioner as royalty not less than two percent of any premiums and bonuses received in connection with the discovery, production or marketing.
Accounting for all royalties shall be made on the twentieth day of the month following the month of sale or receipt of premium or bonus.
Source: SL 1993, ch 53, § 11.
5-7-56. Marketing minerals.
Any lease issued under the provisions of this chapter shall contain provisions requiring the lessee to market the mineral within a reasonable time after production is had.
Source: SL 1993, ch 53, § 12.
5-7-57. Bond required--Amount.
Before any lessee of minerals commences development or operations upon the lands, such lessee shall execute and file with the commissioner a good and sufficient bond or undertaking in an amount to be fixed by the commissioner, but not less than five thousand dollars, in favor of the State of South Dakota, for the benefit of any surface lessee, patentee, or contract purchaser, to secure the payment for such damage to the livestock, water, crops, or other tangible improvements on such lands as may be suffered by reason of development, use and occupation of such lands by the mining lessee. However, any lessee owning one or more mining leases may file a blanket bond in an amount to be fixed by the commissioner, but not less than ten thousand dollars, covering all leases then owned or thereafter acquired by him.
If any surface lessee, patentee, or contract purchaser files with the commissioner a waiver duly executed and acknowledged by him of his right to require such bond, such development, or occupation and use of the lands by a mineral lessee may be permitted without providing for the bond. This bond is in addition to any required by any other statute.
Source: SL 1993, ch 53, § 13.
5-7-58. Records furnished within reasonable bounds--Confidentiality of records.
The commissioner or the commissioner's designee may inspect all records, books, or accounts pertaining to the mining, extraction, transportation, and returns of ores taken from such leased lands. At the request of the commissioner, the lessee shall furnish such reports, samples, logs, assays, or cores within reasonable bounds as the commissioner may deem to be necessary to the proper administration of the lands under lease. The commissioner shall unless otherwise required by law keep such reports, samples, logs, assays, and cores confidential and may not disclose any such information to any third party during the life of the lease.
Source: SL 1993, ch 53, § 14.
5-7-59. Relinquishing lease to state.
With the consent of the commissioner, any lease issued under the provisions of this chapter may be relinquished in whole or in part to the State of South Dakota.
Source: SL 1993, ch 53, § 15.
5-7-60. Cancellation of lease by commissioner--Notice required.
The commissioner may cancel any lease issued under the provisions of this chapter for nonpayment of rentals, for nonpayment of royalties or for violation of any of the terms, covenants, or conditions thereof, but before any such cancellation shall be made, the commissioner shall mail to the lessee or assignee, by registered or certified mail, addressed to the post office address of the lessee or assignee as shown by the records of the office of the commissioner, a notice of intention to cancel the lease, specifying the default for which the lease is subject to cancellation. No proof of receipt of notice is necessary. Thirty days after the mailing, the commissioner may enter cancellation unless the lessee has remedied the default or contested in good faith. Any action to cancel a lease as provided in this chapter shall be conducted in accordance with the provisions of chapter 1-26. The lessee may remain in possession until a final decision is rendered.
Source: SL 1993, ch 53, § 16.
5-7-61. Assignment of lease.
All leases issued under the provisions of this chapter are assignable in whole or in part. The assignment shall be executed and acknowledged in the manner prescribed for conveyance in this state and shall be filed in the office of the commissioner. Any assignment is subject to the consent of the commissioner who may not withhold his consent unreasonably. The approval of the commissioner shall be noted upon the assignment. The commissioner shall prescribe by rule promulgated pursuant to chapter 1-26 the form to be used for such assignments and shall fix a reasonable fee for the filing, recording and approval of the assignment. Upon approval by the commissioner of an assignment, the assignee is the successor to all of the rights and privileges of the assignor with respect to such tracts and shall be held to have assumed all of the duties and obligations of the assignor to the state as to such tracts. However, the record owner of any mineral lease may enter into any contract for the development of the leasehold premises or any portion thereof, or may create overriding royalties or obligations payable out of production, or enter into any other agreements with respect to the development of the leasehold premises or disposition of the production therefrom, and it is not necessary for any such contracts, agreements or other instruments to be approved by the commissioner of school and public lands. Nothing in this section relieves the record title owner of such lease from complying with any of the terms or provisions thereof. In any controversy respecting any such contracts, agreements or other instruments entered into by such lessee with other persons, neither the State of South Dakota nor the commissioner of school and public lands is a necessary party. All such contracts and other instruments shall be filed in the office of the commissioner of school and public lands and recorded in the office of the register of deeds of the county where the lands are situated, and the filing or recording thereof shall constitute public notice of the existence and contents of the instruments so filed or recorded. The commissioner may by rule promulgated pursuant to chapter 1-26 prescribe a reasonable fee for the filing of such instruments in the office of the commissioner of school and public lands. The production of minerals upon any lands embraced in any mineral lease shall continue such lease as to all of the land embraced therein for as long thereafter as any mineral or minerals in paying quantities are being produced in accordance with the provisions thereof, regardless of any assignment of all or a portion of the lease which may have been made prior or subsequent to the production.
Source: SL 1993, ch 53, § 17.
5-7-62. Removal of improvements and equipment upon termination--Time limit.
Upon termination of any lease issued under the provisions of this chapter by reason of forfeiture, surrender, expiration of term, or for any other reason, the lessee may remove all improvements and equipment as can be removed without material injury to the premises. However, all rents and royalties shall be paid and such removal accomplished within two years from the termination date or before such earlier date as the commissioner may set upon thirty days' written notice to the lessee. All improvements and equipment remaining upon the premises after the removal date as set in accordance with this section shall be forfeited to the State of South Dakota without compensation.
Source: SL 1993, ch 53, § 18.
5-7-63. Authority to withhold land from leasing--Rejection of application--Competitive bidding.
Nothing contained in this chapter may be construed as requiring the commissioner to offer any tract of land for lease. The commissioner may withhold any tract from leasing for mineral purposes, if, in his opinion, the best interests of the state would be served by so doing, and nothing contained in this chapter may be construed as prohibiting the commissioner from rejecting any application at any time prior to approval and offering acreage embraced therein for lease upon competitive bidding.
Source: SL 1993, ch 53, § 19.
5-7-64. Transfer of State Cement Plant Commission mineral estates to commissioner of school and public lands.
Notwithstanding any other provisions of law, the commission shall, not later than June 30, 2011, transfer all of the commission's right, title and interest in and to any mineral estates owned or leased by the commission to the commissioner of school and public lands.
Source: SL 2010, ch 32, § 2.
5-7-65. Limited surface and subsurface easements for access to oil, gas, minerals, and geothermal resources.
The commissioner of school and public lands may grant limited surface and subsurface easements on public lands to provide access to land containing potential oil, gas, minerals, or geothermal resources which are not subject to lease pursuant to chapter 5-7 or to public lands held by a separate exploration, development, or production lease issued pursuant to chapter 5-7. Any easement shall be granted pursuant to the provisions of § 5-2-11 with terms and conditions that are customary and proper for the protection of the rights of the state and the surface lessee.
Source: SL 2014, ch 39, § 1.
5-8-1
Rural credit board abolished--Powers transferred to commissioner of school and public lands.
5-8-2
Validation of sales by Rural Credit Board.
5-8-3
Income credited to rural credit fund--Transfer to school funds.
5-8-1. Rural credit board abolished--Powers transferred to commissioner of school and public lands.
The South Dakota Rural Credit Board is hereby abolished and all its powers and duties are hereby transferred to, and shall be exercised and performed by the commissioner of school and public lands; and the duties and powers heretofore vested in the rural credit director are hereby transferred to, and shall be exercised and performed by the commissioner of school and public lands.
Source: SL 1959, ch 292, § 1; SDC Supp 1960, § 55.3201-1.
5-8-2. Validation of sales by Rural Credit Board.
All sales of real estate made by the State of South Dakota, through its Rural Credit Board, and completed by contract or deed to the purchaser prior to February 23, 1947, and the proof, evidencing a compliance with the provisions of SDC 1960 Supp. 55.3219, has not been supplied or does not appear, are hereby legalized, cured, and validated and such proceedings shall be deemed to have been taken as by law provided.
Source: SL 1945, ch 319, § 1; SL 1949, ch 252, § 1; SDC Supp 1960, § 65.0326.
5-8-3. Income credited to rural credit fund--Transfer to school funds.
All funds heretofore credited to the rural credit fund shall continue to be so credited. The commissioner of school and public lands shall from time to time direct the state treasurer to transfer moneys from the rural credit fund as follows: fifty percent to the common school interest and income fund and fifty percent to the common school permanent fund.
Source: SL 1955, ch 279, §§ 1 to 3; SDC Supp 1960, § 55.3229; SL 1976, ch 20, § 4; SL 1978, ch 44.
CHAPTER 5-9
SALE OF SCHOOL AND PUBLIC LANDS
5-9-1 Selection of school and endowment lands to be sold--Amount sold each year.
5-9-2 5-9-2. Repealed by SL 1980, ch 43.
5-9-3 Board of Appraisal--Selection of tracts for sale--Subdivision of lands of special value.
5-9-4 Designation and appraisal of separate tracts for sale--Reappraisal of unsold land.
5-9-5 Offer to purchase particular tract--Forfeiture or return of payment.
5-9-6 Publication of notice of land sale--Selection and appraisal to be concurrent.
5-9-7 Certification and publication of description and appraised price of land offered.
5-9-8 Commissioner to conduct sales.
5-9-9 Time and place of sale--Minimum price--Adjournment of sale--Record of sales.
5-9-10 Terms of installment sale--Interest--Prepayment option.
5-9-11 Notice to lessee of sale.
5-9-12 Successful bidder's deposit with commissioner.
5-9-13 Time of vesting of right or title after sale.
5-9-14 Report of cash sale to Governor--Preparation and delivery of patent--Recordation--Fee.
5-9-15 Report of installment sale to Governor--Preparation, filing and delivery of contract--Copy of abstract to county auditor.
5-9-16 Assignment or conveyance under installment contract--Approval required--Form--Filing fee.
5-9-17 Return of purchaser's deposit on governor's disapproval of sale.
5-9-18 5-9-18 to 5-9-22. Repealed by SL 1980, ch 45, §§ 1 to 5.
5-9-23 Forfeiture of installment contract for delinquency or violation--Retention of purchase money and improvements as liquidated damages--Immediate right to reentry and possession.
5-9-24 Procedure for forfeiture of installment contract--Service of notice.
5-9-25 Recording of notice of default--Prima facie evidence.
5-9-26 Reinstatement of contract on compliance by purchaser with conditions of notice.
5-9-27 Action at law to set aside installment contract in default.
5-9-28 Taxability of land sold--Notice to county auditor of disapproval of sale.
5-9-29 Tax purchaser's rights under installment contract--Payment of delinquent installments.
5-9-30 Special contract of sale given to tax purchaser after issuance of tax deed.
5-9-31 Notice to original purchaser of tax purchaser's intent to apply for special contract--Service of notice.
5-9-32 Issuance of patent to purchaser or assignee of land--Judicial determination in event of death--Recordation--Fee.
5-9-33 Issuance to bankrupt of patent to land set aside as homestead.
5-9-34 Sale for public purposes of tract not exceeding one hundred sixty acres.
5-9-35 Conveyance of tract not exceeding one hundred sixty acres--Reversion to state.
5-9-36 Sale of improvements on school and public lands authorized.
5-9-37 Appraisal and minimum price of improvements offered for sale--Disapproval of sale.
5-9-38 Publication of notice of sale of improvements--Private sales of small value.
5-9-39 Conservation easement for certain state land conveyed to another party.
5-9-1. Selection of school and endowment lands to be sold--Amount sold each year.
The commissioner of school and public lands may select not more than fifty thousand acres from the school and endowment lands of the state, to be offered for sale in each fiscal year. However, in counties in which unsold school land amounts to more than five percent of the total acreage of the county, no more than twenty percent of the total acreage of such school land may be offered for sale, in any one year.
Source: SDC 1939, § 15.0301; SL 1949, ch 46; SL 1968, ch 34, § 1; SL 1975, ch 49; SL 1998, ch 31, § 1.
5-9-3. Board of Appraisal--Selection of tracts for sale--Subdivision of lands of special value.
There is hereby created a Board of Appraisal consisting of the commissioner of school and public lands and the state auditor. Whenever the commissioner shall direct the selection of lands in any county to be offered for sale, the Board of Appraisal shall select the quantity required and designate for sale each tract. Such Board of Appraisal shall take care to select and designate for sale first the most valuable lands, and shall ascertain all such lands as may be of special and peculiar value other than agricultural and cause the proper subdivision of the same, in order that the highest price may be obtained therefor.
Source: SL 1911, ch 224, § 31; RC 1919, § 5655; SDC 1939, § 15.0302; SL 1961, ch 54.
5-9-4. Designation and appraisal of separate tracts for sale--Reappraisal of unsold land.
Such lands as shall not have been specially subdivided shall be designated and offered for sale in separate tracts of not more than eighty acres each, and the smallest subdivisions of those so subdivided shall be separately designated and offered for sale. The Board of Appraisal shall appraise such separate tract of land so selected and designated at its actual value under the terms of sale.
All lands designated for sale and not sold within two years after their appraisal shall be reappraised by the board of appraisers in the manner provided by law before they are sold.
Source: SL 1911, ch 224, §§ 32, 34; SL 1915, ch 272; RC 1919, §§ 5656, 5658; SL 1919, ch 306, § 2; SL 1927, ch 188; SDC 1939, §§ 15.0303, 15.0305; SL 1949, ch 47.
5-9-5. Offer to purchase particular tract--Forfeiture or return of payment.
Any person may file with the commissioner of school and public lands a written offer on any tract, which offer shall be accompanied by a payment of fifty cents for each acre in the tract on which the offer is made. If the tract of land is selected for sale in the year in which the offer is made, the payment, once received, is not refundable and the amount shall be deposited to the credit of the permanent fund of the class of land involved. If the tract is not selected for sale by the commissioner or the Board of Appraisal in the year in which the offer is made, the payment shall be returned to the offeror.
Source: SDC 1939, § 15.0302 as added by SL 1961, ch 54; SL 1982, ch 52.
5-9-6. Publication of notice of land sale--Selection and appraisal to be concurrent.
If land situated in a county is selected and designated for sale by the commissioner of school and public lands pursuant to the provisions of § 5-9-1, the land shall be advertised for sale at public auction by the publication of a notice of the sale, stating the time and place at which the sale of land will begin. The notice shall be published once each week for at least four consecutive weeks in the official newspapers of the county in which the land is located. The published notice of the time and place of the sale need not include the legal descriptions of the land to be offered at the sale. The selection, designation, appraisal, and advertising of the sale of the land shall be done concurrently.
Source: SL 1911, ch 224, § 33; RC 1919, § 5657; SL 1919, ch 306, § 1; SDC 1939, § 15.0304; SL 1961, ch 55; SL 1982, ch 50, § 2; SL 1992, ch 44.
5-9-7. Certification and publication of description and appraised price of land offered.
Fifteen days before the date of sale the commissioner of school and public lands shall certify to the county auditor, the description and appraised price of the land to be offered and shall cause the same to be published in the legal newspapers of the county for two publications.
Source: SDC 1939, § 15.0304 as added by SL 1961, ch 55.
5-9-8. Commissioner to conduct sales.
All sales shall be conducted through the Office of the Commissioner of School and Public Lands. The commissioner shall at the time appointed direct the sale of the lands designated. In case the commissioner is unable to act, the duties prescribed in this section and §§ 5-9-9 to 5-9-11, inclusive, may be performed by an agent duly appointed and commissioned by him for that purpose.
Source: SL 1911, ch 224, § 35; RC 1919, § 5659; SDC 1939, § 15.0306; SL 1957, ch 42.
5-9-9. Time and place of sale--Minimum price--Adjournment of sale--Record of sales.
Such lands shall be sold at public auction to the highest bidder, at the courthouse of the county in which the lands are situated; or, if there be no courthouse, at the building in which the office of the county auditor is located, and between the hours of ten a.m. and five p.m. only. No bid shall be received and no land shall be sold for less than the appraised value and in no case for less than ten dollars an acre. The commissioner of school and public lands or his agent may adjourn the sale from day to day, and for good cause may adjourn it for a period of not more than three days.
The county auditor shall act as clerk at all sales of school lands and shall keep a complete record of such sales and forward a certified copy of the same to the commissioner.
Source: SL 1911, ch 224, §§ 34, 35; SL 1915, ch 272; RC 1919, §§ 5658, 5659; SL 1919, ch 306, § 2; SL 1927, ch 188; SDC 1939, §§ 15.0305, 15.0306; SL 1949, ch 47; SL 1957, ch 42.
5-9-10. Terms of installment sale--Interest--Prepayment option.
The purchaser of common school lands and other lands donated for educational and charitable purposes, except those sold for cash, shall pay at least thirty percent of the purchase price in cash and the remaining seventy percent of the purchase price shall be paid in equal installments of three and one-half percent of the total purchase price on the first day of January of each succeeding calendar year until the whole is paid with interest thereon at a rate established annually by the commissioner of school and public lands, payable annually on the first day of January each year. The commissioner shall establish such interest rate by rules promulgated pursuant to chapter 1-26. The interest rate shall be not less than one and one-half percent above the New York prime lending rate existing at the end of May first of each year. The purchaser shall have the right or option of paying the balance or any number of installments on any date. The Board of Regents and the executive branch may sell extraneous real property as specifically authorized by the Legislature under the conditions prescribed in this section.
Source: SL 1911, ch 224, § 34; SL 1915, ch 272; RC 1919, § 5658; SL 1919, ch 306, § 2; SL 1927, ch 188; SDC 1939, § 15.0305; SL 1949, ch 47; SL 1983, ch 31; SL 1985, ch 36, § 2; SL 1989, ch 20, § 58; SL 1992, ch 45.
5-9-11. Notice to lessee of sale.
Fifteen days before the date of sale of any land, the commissioner of school and public lands shall give notice by registered or certified mail, addressed to the record lessee at his record address, of the day, hour, and place of the sale.
Source: SDC 1939, § 15.0306 as added by SL 1957, ch 42.
5-9-12. Successful bidder's deposit with commissioner.
If a bid is accepted the purchaser shall at once deposit with the commissioner at least thirty percent of the purchase price, or if the land is sold for cash, the purchaser shall deposit the full amount of the price bid.
Source: SL 1911, ch 224, § 36; SL 1917, ch 337; RC 1919, § 5660; SDC 1939, § 15.0307; SL 1994, ch 47, § 6.
5-9-13. Time of vesting of right or title after sale.
No sale shall operate to convey any right or title to any lands for sixty days after the date thereof, nor until the same shall have received the approval of the Governor.
Source: SL 1911, ch 224, § 36; SL 1917, ch 337; RC 1919, § 5660; SDC 1939, § 15.0307.
5-9-14. Report of cash sale to Governor--Preparation and delivery of patent--Recordation--Fee.
If a tract has been sold for cash, the commissioner of school and public lands shall report such sale to the Governor. If the Governor approves the sale, the commissioner shall prepare a patent for the tract according to a form which the commissioner shall prescribe, which shall be executed in the name of the state by the Governor, and attested by the commissioner, under the seal of office. The patent shall be forwarded after the expiration of sixty days from the date of sale to the register of deeds of the county in which the land is located for delivery to the purchaser. The commissioner shall record the patent, deed, or contract in the county in which the land is located and charge the fee assessed by the county plus a transaction fee of ten dollars.
Source: SL 1911, ch 224, § 37; RC 1919, § 5661; SDC 1939, § 15.0308; SL 1949, ch 48; SL 1994, ch 47, § 7.
5-9-15. Report of installment sale to Governor--Preparation, filing and delivery of contract--Copy of abstract to county auditor.
The commissioner of school and public lands shall, on receipt of a report that a tract has been sold, if the land is to be paid for in installments, prepare a contract of sale for such tract in duplicate, according to a form which the commissioner shall prescribe, and shall submit the same to the Governor for approval. Should the Governor approve the sale, the Governor shall certify such approval and the commissioner shall execute the same. The approval of the Governor and one copy of such contract shall be filed in the office of the commissioner, and the other copy of the contract shall be forwarded to the purchaser after the expiration of sixty days from the date of sale and a copy of the final abstract of sale shall be forwarded to the county auditor for use as noted in § 5-9-28.
Source: SL 1911, ch 224, § 37; RC 1919, § 5661; SDC 1939, § 15.0308; SL 1949, ch 48; SL 1967, ch 34; SL 1980, ch 44; SL 2023, ch 3, § 27.
5-9-16. Assignment or conveyance under installment contract--Approval required--Form--Filing fee.
Any assignment of any rights under such contract, or conveyance of any interest in the lands therein described is ineffective until such assignment or conveyance is first approved, in writing, by the commissioner of school and public lands. The commissioner shall prescribe the form to be used for such assignment or conveyance and shall fix a reasonable fee for filing, recording, and approval of it.
Source: SDC 1939, § 15.0308 as added by SL 1949, ch 48; SL 1984, ch 36, § 2.
5-9-17. Return of purchaser's deposit on governor's disapproval of sale.
If the Governor disapproves of the sale of any tract, the commissioner of school and public lands shall return in full to the purchaser, the sum deposited for the tract.
Source: SL 1911, ch 224, § 37; RC 1919, § 5661; SDC 1939, § 15.0308; SL 1949, ch 48; SL 1994, ch 47, § 8.
5-9-23. Forfeiture of installment contract for delinquency or violation--Retention of purchase money and improvements as liquidated damages--Immediate right to reentry and possession.
The deferred payments for lands sold and the interest thereon shall be paid promptly when due to the commissioner of school and public lands. Whenever the purchaser of any tract shall fail to pay the principal and interest due by him to the state for such tract within three months after same shall become due or shall violate any of the provisions of the contract of sale, such contract shall be null and void and he shall forfeit the amount of purchase money and interest paid on the purchase of said land, and all right, title, and interest in all improvements thereon, and such payments and improvements shall be retained by the state for the same purposes for which the proceeds of sale from such lands are used, in full satisfaction and in liquidation of all damages for the use and possession of said property by the purchaser; and the state shall have immediate right to reenter and take possession of said real estate.
Source: SL 1911, ch 224, § 42; RC 1919, § 5666; SL 1919, ch 306, § 3; SL 1929, ch 221; SDC 1939, § 15.0309; SL 1988, ch 49, § 2.
5-9-24. Procedure for forfeiture of installment contract--Service of notice.
To effect such forfeiture the commissioner of school and public lands shall serve upon the purchaser or his legal representatives or assigns a notice specifying the conditions in which default has been made, stating that such contract will terminate thirty days after the service of such notice or at the expiration of three months after the default, if that time has not already expired, unless prior thereto the purchaser shall comply with such conditions and pay the costs of service. Such notice shall be served personally in the manner provided for the service of summons in civil actions. If the person to be served is not a resident of the state, cannot be found therein, or is deceased, any of which facts the return of the sheriff of the county where the real estate lies shall be prima facie evidence that he cannot be found in such county, then service shall be made by three weeks published notice in a newspaper of general circulation in the county where the real estate is situated, and such service shall be binding upon all parties in interest in said real estate, including all of the personal representatives, heirs at law, devisees, legatees, next of kin, and creditors of any deceased person. Personal service of said notice without the state, proved by the affidavit of the person making the same, made before an authorized officer having a seal, shall have the same effect as the published notice herein provided for.
Source: SL 1919, ch 306, § 3; SL 1929, ch 221; SDC 1939, § 15.0309.
5-9-25. Recording of notice of default--Prima facie evidence.
A copy of the notice with proof of service thereof and the affidavit of the commissioner of school and public lands showing that the purchaser has not complied with the terms of the notice, may be recorded with the register of deeds and shall be prima facie evidence of the facts therein stated.
Source: SL 1919, ch 306, § 3; SL 1929, ch 221; SDC 1939, § 15.0309.
5-9-26. Reinstatement of contract on compliance by purchaser with conditions of notice.
If within the time mentioned in the notice, the person served complies with such conditions and pays the cost of service, the contract shall be thereby reinstated to the same effect as though no default had occurred, but otherwise shall terminate as provided in § 5-9-23.
Source: SL 1919, ch 306, § 3; SL 1929, ch 221; SDC 1939, § 15.0309.
5-9-27. Action at law to set aside installment contract in default.
In lieu of or in addition to the forfeiture by notice as hereinbefore provided in the discretion of the commissioner of school and public lands, such contract may be set aside by an action at law in the circuit court for the county in which said real estate is situated under the proceedings provided for the strict foreclosure of real estate contracts, or under any other proceedings provided by law, and the attorney general shall conduct all of said proceedings upon written request filed with him by the commissioner of school and public lands of the State of South Dakota.
Source: SL 1911, ch 224, § 42; RC 1919, § 5666; SL 1919, ch 306, § 3; SL 1929, ch 221; SDC 1939, § 15.0309.
5-9-28. Taxability of land sold--Notice to county auditor of disapproval of sale.
Whenever the county auditor shall deliver to the commissioner of school and public lands the certified copy of the record of any land sales as provided in § 5-9-9, the county auditor shall take notice of the same and such land shall thereupon become subject to taxation the same as other lands; and taxes shall be assessed thereon, collected and enforced, in like manner as taxes on other lands, unless the commissioner of school and public lands shall notify the county auditor prior to the next ensuing assessment date that the sale of such lands or any description thereof has been disapproved.
Source: SL 1911, ch 224, § 45; SL 1917, ch 340, § 1; RC 1919, § 5669; SDC 1939, § 15.0311; SL 1955, ch 35.
5-9-29. Tax purchaser's rights under installment contract--Payment of delinquent installments.
The purchaser of any such land sold for delinquent taxes shall acquire only such rights and interests as belong to the party holding the contract of sale hereinbefore provided for, and the right to be substituted as the assignee thereof and upon exhibition to the proper officer of the tax certificate given at a tax sale, in case the land has not been redeemed, such tax purchaser shall have the right to make any payment of principal or interest then in default upon the contract of sale, as the assignee thereof, prior to the redemption of such land.
Source: SL 1911, ch 224, § 45; SL 1917, ch 340, § 1; RC 1919, § 5669; SDC 1939, § 15.0311; SL 1955, ch 35.
5-9-30. Special contract of sale given to tax purchaser after issuance of tax deed.
In case the holder of such contract of sale shall fail to redeem the land within the time allowed by law for the redemption of other lands sold for taxes, and also pay to the proper officer for the use of the holder of the tax certificate all payments of principal and interest if any, made by him upon the contract of sale, with interest from the time so made at the rate provided by law, the holder and owner of such tax certificate, upon the receipt of a tax deed thereon, duly given, and the filing of a certified copy of the same with the commissioner of school and public lands together with a certificate showing that he has caused notice as hereinafter provided to be served upon the legal holder of the contract of sale of his intention of making application for a special contract of sale as herein provided, shall be given by the commissioner a special contract of sale, embodying the same terms and conditions and with like force and effect as the original contract of sale and in lieu thereof.
Source: SL 1911, ch 224, § 45; SL 1917, ch 340, § 1; RC 1919, § 5669; SDC 1939, § 15.0311; SL 1955, ch 35.
5-9-31. Notice to original purchaser of tax purchaser's intent to apply for special contract--Service of notice.
Before the holder of a tax deed as above provided shall be entitled to a special contract of sale, notice shall be served upon the owner of record of the original contract of sale, and upon the person in possession of the land covered by said contract. Such notice shall be signed by the holder of the tax deed, his agent, or attorney, stating the date of the tax deed, the description of the land, the name of the holder of the contract, the date and number of the same, and setting forth the fact that he will make application for a special contract at the expiration of sixty days from the service of the notice. Personal service of such notice in the manner provided by law for the service of summons shall be made upon the holder of the contract if he resides within the state. If he is a nonresident such notice may be served by publication once each week for three consecutive weeks in some newspaper printed in the county where the land is situated.
Source: SL 1911, ch 224, § 45; SL 1917, ch 340, § 1; RC 1919, § 5669; SDC 1939, § 15.0311; SL 1955, ch 35.
5-9-32. Issuance of patent to purchaser or assignee of land--Judicial determination in event of death--Recordation--Fee.
When full payment has been made for any tract sold, a patent for the tract executed in the name of the state by the Governor, and attested by the commissioner of school and public lands, under the seal of office of the commissioner, shall be made out and delivered by the commissioner to the register of deeds of the county in which the land is situated. The patent shall run to the original purchaser, if the purchaser is living and the purchaser's interest in the land has not been assigned. However, if a legal transfer of the purchaser's interest has been made, the patent shall run to the actual owner of such interest, as may appear from documentary evidence approved by the state's attorney, treasurer, and auditor of the county in which the land is situated, and shall be filed with the application for the patent. In case of the death of the original purchaser or assignee, a patent may not be issued until a court of competent jurisdiction has ascertained and adjudged who is entitled to the patent and a certified copy of the decree or order of the court has been filed with the application for patent. The commissioner shall record the patent, deed, or contract in the county in which the land is located and charge the fee assessed by the county plus a transaction fee of ten dollars.
Source: SL 1911, ch 224, § 44; SL 1915, ch 273; RC 1919, § 5668; SDC 1939, § 15.0312; SL 1994, ch 47, § 9.
5-9-33. Issuance to bankrupt of patent to land set aside as homestead.
When, in the adjudication of an estate in bankruptcy proceedings, a portion of a legal subdivision has been decreed and set apart to the bankrupt as exempt under the homestead laws of the state, and a plat showing the exact boundaries of the tract so set apart has been filed in the office of the register of deeds of the county in which the lands are situated and a copy thereof has also been filed in the Office of the Commissioner of School and Public Lands, a patent may be issued for such tract to the bankrupt to whom such tract has been set apart.
Source: SL 1911, ch 224, § 44; SL 1915, ch 273; RC 1919, § 5668; SDC 1939, § 15.0312.
5-9-34. Sale for public purposes of tract not exceeding one hundred sixty acres.
Whenever a civil, state, religious, or public organization makes an application for the purchase of any common school or endowment land to be used for public purposes, not exceeding one hundred sixty acres, and files a plat and a statement of the purpose for which the land is to be used in the Office of the Commissioner of School and Public Lands, the commissioner may appraise the tract in the manner provided by law for the appraisement of school and public lands.
Source: SDC 1939, § 15.0313; SL 1949, ch 49; SL 1959, ch 53; SL 1998, ch 32, § 1.
5-9-35. Conveyance of tract not exceeding one hundred sixty acres--Reversion to state.
Upon the payment of the full amount of the appraised price of such tract, a conveyance may be executed by the Governor, attested by the commissioner of school and public lands, with the seal affixed, conditioned that should such lands cease to be used for two successive years for the purpose stated in the application, the title shall revert to the state.
Source: SDC 1939, § 15.0313; SL 1949, ch 49; SL 1959, ch 53; SL 1998, ch 32, § 2.
5-9-36. Sale of improvements on school and public lands authorized.
Whenever the right, title, and interest in improvements upon school and public lands shall have vested in the state, the commissioner of school and public lands is authorized, whenever in his judgment it shall be for the best interest of the state to sell and dispose of such improvements for cash at public auction to the highest bidder at the courthouse of the county in which the improvements are situated.
Source: SL 1923, ch 255, § 1; SDC 1939, § 15.0326; SL 1939, ch 37.
5-9-37. Appraisal and minimum price of improvements offered for sale--Disapproval of sale.
When improvements are designated to be offered for sale, the commissioner of school and public lands shall make a list of such improvements and present such list to the Board of Appraisal provided for in § 5-9-3, who shall make an itemized appraisement of the same. No improvements shall be sold for less than the appraised value. The commissioner may disapprove any sale if it is not to the best interest of the state.
Source: SL 1923, ch 255, § 2; SDC 1939, § 15.0326; SL 1939, ch 37.
5-9-38. Publication of notice of sale of improvements--Private sales of small value.
Notice of sale, stating the time, place, and terms of sale and description of the property to be sold shall be given by publishing the same for two successive weeks at least once each week, in a newspaper in the county in which such improvements are situated.
The commissioner of school and public lands, however, is authorized to sell any improvements upon school and public lands, the value of which in his opinion, does not exceed fifty dollars at private sale without publication notice for any amount not exceeding fifty dollars which he may consider a fair selling price.
Source: SL 1923, ch 255, § 2; SDC 1939, § 15.0326; SL 1939, ch 37.
5-9-39. Conservation easement for certain state land conveyed to another party.
If the federal government conveys the fee title of any land to the State of South Dakota and that land is under the management of the Office of School and Public Lands, the Office of School and Public Lands may reconvey the fee title to another party if the land is no longer used or needed by the state. However, the state may hold a perpetual conservation easement to protect the public interest in preserving the archaeological and paleontological aspects on the land when the fee title is conveyed to another party. The conveyance documents shall specify the conservation easement and the conservation easement shall be made in accordance with §§ 1-19B-56 to 1-19B-60, inclusive.
Source: SL 2000, ch 28, § 1.
CHAPTER 5-10
STATE SCHOOL AND ENDOWMENT FUNDS
5-10-1 Assignment of receipts from leases, interest, and land sales to income and permanent funds.
5-10-1.1 Board of Regents endowed institution interest and income fund created.
5-10-1.2 Endowed institution interest and income fund--Allocation.
5-10-2 5-10-2. Repealed by SL 1980, ch 46, § 1.
5-10-3 Accounts and records maintained by commissioner.
5-10-4 Supervision by commissioner of collections, apportionment, and distribution of funds.
5-10-5 Annual statement to counties of sale and lease payments coming due.
5-10-6 Apportionment among counties and institutions of income from school lands and funds.
5-10-7 County treasurer's receipts for payments by lessees and purchasers--Disposition of copies.
5-10-8 5-10-8, 5-10-9. Repealed by SL 1988, ch 49, §§ 4, 5.
5-10-10 5-10-10. Repealed by SL 1980, ch 46, § 4.
5-10-11 5-10-11, 5-10-12. Repealed by SL 1982, ch 53, §§ 4, 5.
5-10-13 5-10-13, 5-10-14. Repealed by SL 1988, ch 49, §§ 6, 7.
5-10-15 5-10-15. Repealed by SL 1982, ch 53, § 6.
5-10-16 Delivery of payment by lessee or purchaser to state treasurer.
5-10-17 Credit to school and endowment fund.
5-10-18 Investment of permanent school funds.
5-10-18.1 5-10-18.1, 5-10-18.2. Repealed by SL 2001, ch 26, §§ 7, 8.
5-10-18.3 Adjusting funds by rate of inflation--Procedure.
5-10-19 5-10-19, 5-10-20. Repealed by SL 1973, ch 37, § 3.
5-10-21 5-10-21, 5-10-22. Repealed by SL 1980, ch 46, §§ 5, 6.
5-10-23 Bidding and purchase by state at judgment sale of school and public lands.
5-10-24 Maximum price bid by state--Allowance for prior encumbrances.
5-10-25 Disposition of proceeds of judgment.
5-10-26 5-10-26 to 5-10-31. Repealed by SL 1974, ch 47, § 3.
5-10-32 5-10-32. Repealed by SL 1980, ch 46, § 7.
5-10-33 5-10-33. Repealed by SL 1974, ch 47, § 3.
5-10-34 Reporting status of common school interest and income fund and status of common school apportionment.
5-10-1. Assignment of receipts from leases, interest, and land sales to income and permanent funds.
The income from the leased lands of each class of school and public lands and the interest on the permanent fund of that class shall be assigned by the state treasurer to a fund to be known as the interest and income fund of such class. However, the income from any commercial lease made by the commissioner of school and public lands pursuant to SL 2017, ch 51, §§ 1 to 3, inclusive, as amended by SL 2018, ch 111, §§ 1 to 3, inclusive, shall be continuously appropriated to the endowed institution for use in maintaining the property and supporting the operations of the endowed institution. The principal of money derived from the sale of each class of lands granted to the state for educational and charitable purposes shall be assigned by the state treasurer to a fund to be known as the permanent fund of such class.
Source: SL 1911, ch 224, § 39; RC 1919, § 5663; SDC 1939, § 15.0601; SL 1957, ch 45; SL 2018, ch 111, § 9, eff. Feb. 8, 2018.
5-10-1.1. Board of Regents endowed institution interest and income fund created.
There is hereby created in the state treasury a fund called the Board of Regents endowed institution interest and income fund to be administered by the commissioner of school and public lands. Any investments of money in the fund shall be made by the State Investment Council. No allocations or expenditures may be made from the fund except as provided in § 5-10-1.2. The fund shall be declared a participating fund and it shall be credited for all interest, dividends, and other income earned on fund balances, in accordance with the provisions of § 5-10-18.3.
Source: SL 1989, ch 50, § 1; SL 1997, ch 37, § 2; SL 2001, ch 26, § 4.
5-10-1.2. Endowed institution interest and income fund--Allocation.
The commissioner of school and public lands shall deposit revenue collected for state endowed institutions under the control of the Board of Regents, pursuant to § 5-10-1 and chapters 10-4 and 10-6, in the Board of Regents endowed institution interest and income fund, created by § 5-10-1.1, and credit the appropriate institutional account within the fund. On a periodic basis, the commissioner shall allocate the money to the appropriate institutions.
The total allocation for an institution for a fiscal year is the lesser of that institution's revenue for the fiscal year plus the beginning cash balance of the institution's account or:
$ 236,041 for the University of South Dakota;
$ 548,451 for South Dakota State University;
$ 133,022 for South Dakota School of Mines and Technology;
$ 183,393 for Northern State University;
$ 173,360 for Dakota State University;
$ 173,360 for Black Hills State University;
$ 97,959 for South Dakota Services for the Deaf;
$ 94,712 for the School for the Blind and the Visually Impaired; and
$ 77,745 for the agricultural experiment station.
Revenue in excess of the allocation shall be credited to the corresponding institutional account. If the cash balance of any institutional account exceeds fifty percent of the maximum allocation for that institution at the end of the fiscal year, the commissioner shall allocate the portion over fifty percent to the institution in the next fiscal year in addition to the normal allocation.
Source: SL 1989, ch 50, § 2; SL 1989, ch 170, §§ 1-3; SL 1990, ch 44; SL 1998, ch 110, § 4; SL 1999, ch 25, § 3; SL 2023, ch 62, § 2.
5-10-3. Accounts and records maintained by commissioner.
The commissioner of school and public lands shall keep an accurate account of all money due or to become due the state on account of sales and leases of school and public lands and the interest arising from the loaning of the permanent school fund.
Source: SL 1911, ch 224, §§ 38, 61; RC 1919, §§ 5662, 5701; SDC 1939, § 15.0601; SL 1957, ch 45; SL 1984, ch 34, § 12.
5-10-4. Supervision by commissioner of collections, apportionment, and distribution of funds.
The commissioner of school and public lands shall have supervision of the collection of all money due the state for the purposes aforesaid, and of the apportionment and distribution of such funds to the several counties and public institutions of the state.
Source: SL 1911, ch 224, § 62; RC 1919, § 5702; SDC 1939, § 15.0602.
5-10-5. Annual statement to counties of sale and lease payments coming due.
The commissioner of school and public lands shall on or before the fifteenth day of December of each year furnish to the treasurer of each county a full statement of the principal and interest on sales and rental on term leases falling due in such county on the first day of January following.
Source: SL 1911, ch 224, § 63; RC 1919, § 5703; SDC 1939, § 15.0602; SL 1980, ch 46, § 2.
5-10-6. Apportionment among counties and institutions of income from school lands and funds.
The commissioner of school and public lands, after any adjustments that have been made pursuant to § 5-10-18.3, shall make a division and apportionment of all funds derived from the leasing of school and public lands, from interest, dividends, and other income on all invested funds derived from the sale of school and public lands, and from interest, dividends, and other income on invested funds derived from the five percent paid to the state by the United States on sales of public lands within the state, such apportionment to be made among the counties, and the educational, penal, and charitable institutions, as provided by law.
Source: SDC 1939, § 15.0108; SL 2001, ch 26, § 5.
5-10-7. County treasurer's receipts for payments by lessees and purchasers--Disposition of copies.
The county treasurer shall, for all money paid to him by any lessee or purchaser, execute triplicate receipts, and shall deliver one receipt to the person paying the same, transmit one receipt and the accompanying payment to the commissioner of school and public lands, not later than the third business day, and file the other receipt in his office.
Source: SL 1911, ch 224, § 43; RC 1919, § 5667; SDC 1939, § 15.0601; SL 1957, ch 45; SL 1988, ch 49, § 3.
5-10-16. Delivery of payment by lessee or purchaser to state treasurer.
Upon receipt of payment by a lessee or purchaser, if remitted in the proper form and in the proper amount, the commissioner of school and public lands shall forthwith deliver the payment to the state treasurer with instructions as to the fund to be credited.
Source: SL 1945, ch 66, § 3; SDC Supp 1960, § 15.0605-1; SL 1988, ch 49, § 8.
5-10-17. Credit to school and endowment fund.
The state treasurer shall, upon receipt, credit such business receipts to the state school and endowment fund.
Source: SL 1973, ch 37, § 1.
5-10-18. Investment of permanent school funds.
The moneys of the common school permanent fund and other educational funds shall be invested by the State Investment Council, in accordance with the provisions of § 4-5-27.
Source: SL 1951, ch 85; SL 1953, ch 47; SL 1955, ch 37; SL 1957, ch 46; SDC Supp 1960, § 15.0609-1; SL 1969, ch 34; SL 1970, ch 36; SL 1970, ch 37; SL 1972, ch 29; SL 1983, ch 28, § 4; SL 1992, ch 60, § 2; SL 1997, ch 37, § 3; SL 2001, ch 26, § 6.
5-10-18.3. Adjusting funds by rate of inflation--Procedure.
In adjusting the principal of the common school permanent fund and other educational and charitable funds by the rate of inflation pursuant to Article VIII, Section 3 of the South Dakota Constitution, the State Investment Council shall proceed as follows:
(1) The inflation adjustment period is the fiscal year, beginning July first and ending June thirtieth. The first inflation adjustment period begins on November 15, 2000, and ends on June 30, 2001. The principal shall be credited each year for the inflation adjustment at the time of the common school apportionment beginning in 2002;
(2) The rate of inflation is based on the consumer price index prepared by the Bureau of Labor Statistics of the United States Department of Labor;
(3) The principal balance in each permanent school and other educational and charitable fund as of November 15, 2000, adjusted by amounts as provided by law, is the principal balance to be increased by the rate of inflation; and
(4) The inflation adjustment requirement shall be met using realized net capital gains. If these are not sufficient, the interest, dividends, and other income shall be used. Any excess realized net capital gains shall be carried forward for the following year's inflation adjustment.
Source: SL 2001, ch 26, § 1.
5-10-23. Bidding and purchase by state at judgment sale of school and public lands.
Whenever any real property is sold to satisfy a judgment in favor of the state in any action relating to the school and public lands, it shall be the duty of the commissioner of school and public lands to represent the state as a bidder at such sale and, if he shall purchase such property, the certificate of sale and sheriff's deed, if one be issued, shall be made to the state.
Source: SL 1911, ch 224, § 83; RC 1919, § 5713; SDC 1939, § 15.0608.
5-10-24. Maximum price bid by state--Allowance for prior encumbrances.
The maximum price which the commissioner of school and public lands shall bid for any such property at any such sale shall be determined by an appraisement, to be made in the same manner that the school and public lands of the state are by law required to be appraised, but such price shall never exceed the amount of prior encumbrances, judgments, interest, and costs.
Source: SL 1911, ch 224, § 84; RC 1919, § 5714; SDC 1939, § 15.0608.
5-10-25. Disposition of proceeds of judgment.
All money received as the proceeds of any such sales, or in satisfaction of any judgment obtained in favor of the state in any such action shall be paid to the state treasurer and by him be divided and apportioned according to law.
Source: SL 1911, ch 224, § 85; RC 1919, § 5715; SDC 1939, § 15.0608.
5-10-34. Reporting status of common school interest and income fund and status of common school apportionment.
The commissioner of school and public lands shall report the status of the common school interest and income fund to the superintendents of the common schools on a quarterly basis.
The commissioner of school and public lands shall report the status of the common school apportionment by October thirty-first to the Governor, the chairs of the house and senate appropriations committees and the secretary of the Department of Education.
Source: SL 1990, ch 45; SL 2004, ch 17, § 7.
5-11-1
Certification by commissioner of school and endowment land lessees and acreage.
5-11-1.1
Forfeiture of lease for failure to pay tax--Collection procedures.
5-11-2
Computation of value of school lands in county and addition to tax base--Restricted
purpose of addition to tax base.
5-11-3
Computation of value of school lands within school districts--Addition to tax base.
5-11-4, 5-11-5. Repealed.
5-11-6
Distribution of payments in lieu of taxes.
5-11-7
Repealed.
5-11-8
Payments in lieu of taxes on land held by state institutions.
5-11-1. Certification by commissioner of school and endowment land lessees and acreage.
The commissioner of school and public lands shall on or before June first of each year certify to the auditor of each county where school and endowment land exists a list of all school and endowment lands in the county, and name and address of each lessee and the number of acres of school and endowment land under lease.
Source: SL 1965, ch 256, § 1; SL 1977, ch 47, § 1; SL 1994, ch 48, § 1.
5-11-1.1. Forfeiture of lease for failure to pay tax--Collection procedures.
Any person who has leased school and endowment lands shall forfeit that lease if that person fails to pay the tax levied upon the leased lands by November first of the year in which it is due and payable. If the tax remains delinquent, each county may proceed with collection under procedures set forth in chapter 10-22 for the collection of mobile home taxes. On December first of each year the county treasurer shall certify to the commissioner of school and public lands any taxes on leased lands that have not been paid.
Source: SL 1977, ch 47, § 7; SL 1981, ch 35; SL 1992, ch 80, § 221; SL 1994, ch 48, § 2.
5-11-2. Computation of value of school lands in county and addition to tax base--Restricted purpose of addition to tax base.
The county auditor of each county having within its boundaries school and endowment lands shall ascertain the average assessed valuation per acre of all taxable agricultural lands within the county, after the assessment of such lands have been finally equalized by the boards of equalization and shall multiply such average assessed valuation by the number of acres of school and endowment lands and the resultant figure shall be added to the assessed valuation of such county to arrive at the rate of tax levy in mills for the county. Provided, however, that the amount ascertained by the county auditor as representing the value of school and endowment lands shall not be included or considered in determining the assessed value of any county or school district for any purpose whatsoever, except as herein expressly provided in establishing rates of levy.
Source: SL 1965, ch 256, § 2.
5-11-3. Computation of value of school lands within school districts--Addition to tax base.
The county auditor of each county shall ascertain the average assessed valuation per acre of all taxable agricultural lands within the several school districts of his county, within the boundaries of which are school and endowment lands after the assessments of such lands have been finally equalized, and shall multiply such average assessed valuation by the number of acres of school and endowment lands and the resultant figure shall be added to the assessed valuation of such district to arrive at the rate of levy in mills for each school district.
Source: SL 1965, ch 256, § 3.
5-11-6. Distribution of payments in lieu of taxes.
The county auditor shall distribute federal and state payments in lieu of tax proceeds in the same manner as taxes are distributed.
Source: SL 1965, ch 256, § 5; SL 1977, ch 47, § 2; SL 1979, ch 33, § 1.
5-11-8. Payments in lieu of taxes on land held by state institutions.
In addition to the payments heretofore provided for in this chapter the equivalent of taxes shall be determined and paid in like manner on all lands exclusive of the structure thereon located outside of the corporate limits of municipalities and owned by the State of South Dakota and under the supervision of the executive branch or the State Board of Regents.
Source: SL 1965, ch 256, § 7; SL 1989, ch 20, § 59; SL 1992, ch 60, § 2.
CHAPTER 5-12
SOUTH DAKOTA BUILDING AUTHORITY
5-12-1 Authority created--Composition--Initial terms--Political affiliation--Chairman.
5-12-1.1 Authority continued within Bureau of Finance and Management--Records and reports.
5-12-1.2 Meaning of United States Department of Agriculture Conservation Reserve Program.
5-12-2 Terms of members--Vacancies--Quorum.
5-12-3 Oath and bond of members.
5-12-4 Members receive no compensation--Reimbursement of expenses.
5-12-5 Employment of personnel.
5-12-6 Common seal of authority.
5-12-7 Purposes of authority.
5-12-8 Studies and investigations of land needs.
5-12-8.1 Additional powers with respect to projects under § 5-12-8.
5-12-9 5-12-9. Repealed by SL 1988, ch 51, § 3.
5-12-10 Transfer of state property to authority.
5-12-11 Power of authority to acquire property--Methods of acquisition.
5-12-11.1 Standards and specifications to accommodate persons with disabilities.
5-12-12 Plans and specifications for projects to be undertaken.
5-12-13 Lease of facilities and sites to state agencies authorized--Commencement of payments under lease.
5-12-14 Terms, conditions, and rental under leases--Annual extension provision.
5-12-15 Lessee's option to purchase--Conveyance on exercise of option.
5-12-16 Taxes and insurance added to rental properties--Authorization to self-insure.
5-12-17 Authority's power to use facilities for other purposes on nonpayment of rent--Appropriations and funds from which rent payable.
5-12-18 Costs and reserves to be covered by rent and charges.
5-12-19 Tax exemption of property owned or leased by authority--Exception.
5-12-20 Resolutions for revenue bonds authorized--Purpose--Legislative approval required.
5-12-21 Purposes for which bonds issued--Refunding and refinancing--Pledge of income.
5-12-22 Terms and interest rate of bonds.
5-12-23 Revenues and income from which bonds payable--Use of educational facilities fund--Disposition of revenues.
5-12-24 Execution and registration of bonds--Validity of signature by officers.
5-12-25 Restrictions on obligation stated on face of bonds.
5-12-26 Creation of state obligation not authorized.
5-12-27 Contract with bondholders--Bondholders' remedies.
5-12-27.1 Refunding bonds authorized--Purposes.
5-12-27.2 Amount of refunding bonds.
5-12-27.3 Exchange or sale of refunding bonds--Proceeds of sale--Cancellation of bonds and coupons--Evidence of discharge of interest obligation.
5-12-27.4 Exchange or sale of bonds--Disposition of proceeds of sale.
5-12-27.5 Assistance in conserving and improving soil and water resources of highly erodible cropland by means of loans--Revenue bonds and interim notes authorized.
5-12-27.6 No indebtedness to be charged against state.
5-12-27.7 Acceptance and expenditure of gifts, contributions, etc., authorized.
5-12-27.8 Lease and sublease agreements with South Dakota Building Authority authorized to support purpose and payment of revenue bonds or interim notes.
5-12-28 Interim notes authorized--Purposes of borrowing.
5-12-29 Resolution for issuance of interim notes--Interest rate--Maturity date.
5-12-30 Terms and registration of interim notes--Redemption prior to maturity--Execution of notes--Pledge of income and revenue.
5-12-31 Additional provisions to secure payment of interim notes.
5-12-32 Debt limitations not applicable to interim notes--Personal liability not created by execution of notes.
5-12-33 Payment of interim notes or purchase of government obligations with proceeds from sale of revenue bonds.
5-12-34 Disposition of income under chapter--Public building fund.
5-12-35 Accounts maintained by authority--Purpose of disbursements from public building fund.
5-12-36 Authority to convey property to state when debt paid or payment provided for--Reversion to authority.
5-12-37 Record of rental payments under lease--Conveyance to lessee after amortization of debt.
5-12-38 Annual audit.
5-12-38.1 Informational budget required.
5-12-39 Contractual power of authority.
5-12-40 Bylaws, rules, and regulations of authority.
5-12-41 Severability of provisions.
5-12-42 Sale and lease-back arrangements--Sales and land leases authorized--Use of proceeds.
5-12-43 Sale and lease-back arrangements--Contracts to acquire use or ownership authorized--Terms.
5-12-44 Provisions applicable to contracts to acquire use or ownership.
5-12-45 Revenue bonds to finance sale and lease-back arrangements--Lending proceeds--Refund or refinance of obligations.
5-12-46 Legislative approval required for sale and lease-back arrangements.
5-12-47 Revenue obligations--Issuance--Purpose--Funds for payment.
5-12-47.1 Payment of lease rental obligations to South Dakota Building Authority by Bureau of Finance and Management.
5-12-47.2 Irrevocable escrow agreement for defeasance and payment of lease revenue trust certificates and bonds--Arrangements to pay governmental expenses.
5-12-48 Definition of terms.
5-12-48.1 Authority may invest funds in certain permitted investments.
5-12-49 Transfer and sale of state's right to tobacco settlement revenues--Disposition of funds--Written agreement--Filing of agreement.
5-12-50 Establishment of special purpose corporation--Limitations--Board membership--Powers of corporation.
5-12-50.1 Bond transactions to be public records subject to disclosure.
5-12-51 Purposes of special purpose corporation.
5-12-52 Bonds of corporation not a lien, charge or liability against the state--Pledge of education enhancement trust funds prohibited.
5-12-53 Pledge of non-interference by state to impair terms of bonds--Liability of state on bonds.
5-12-54 Liability of authority and special purpose corporation.
5-12-55 Special purpose corporation treated as public instrumentality of state--Income of authority and corporation not taxed--Obligations of corporation deemed public securities.
5-12-56 Employees of special purpose corporation.
5-12-57 5-12-57, 5-12-58. Repealed by SL 2013, ch 28, §§ 5, 6.
5-12-59 State pledge to honor agreements of authority or corporation with regard to certain federal income tax exclusions.
5-12-60 5-12-60. Repealed by SL 2013, ch 28, § 8.
5-12-61 Authority may contract to manage payment or interest rate risk for bonds.
5-12-1. Authority created--Composition--Initial terms--Political affiliation--Chairman.
There is created the South Dakota Building Authority, a body corporate and politic, to consist of seven members appointed by the Governor with the advice and consent of the Senate. The terms for the initial appointments shall be as follows: one member four years; two members three years; two members two years, and two members one year. Not all of the members shall be of the same political party. No person shall be appointed to the building authority who is an elected official of the State of South Dakota or any subdivision thereof. One of the members shall be designated by the Governor as chairman.
Source: SL 1967, ch 276, § 1; SL 1980, ch 21, § 3.
5-12-1.1. Authority continued within Bureau of Finance and Management--Records and reports.
The South Dakota Building Authority shall continue within the Bureau of Finance and Management, and shall retain all its prescribed functions, including administrative functions. The authority shall submit such records, information, and reports in the form and at such times as required by the commissioner of finance and management, except that the authority shall report at least annually.
Source: SL 1973, ch 2, § 16 (a).
5-12-1.2. Meaning of United States Department of Agriculture Conservation Reserve Program.
For the purposes of §§ 5-12-1.2, 5-12-7, 5-12-8, 5-12-8.1, 5-12-16, 5-12-19, 5-12-20, 5-12-22, 5-12-23, and 5-12-37, United States Department of Agriculture Conservation Reserve Program means Subtitle D of Title XII of the United States Food Security Act of 1985, as amended on January 25, 1988, and any rules promulgated thereunder.
Source: SL 1988, ch 50, § 1.
5-12-2. Terms of members--Vacancies--Quorum.
All appointments to the South Dakota Building Authority shall be made for a four-year term. Each member's term of office shall expire on the appropriate third Monday in January, but he shall continue to hold office until his successor is appointed and qualified. Any vacancy in the authority shall be filled by appointment for only the balance of the unexpired term. Four members of the authority shall constitute a quorum.
Source: SL 1967, ch 276, § 1; SL 1980, ch 21, § 1.
5-12-3. Oath and bond of members.
Each member shall, before entering upon the duties of his office, take and subscribe the constitutional oath of office and give bond in the penal sum of twenty-five thousand dollars conditioned upon the faithful performance of his duties. The oath and bond shall be filed in the Office of the Secretary of State.
Source: SL 1967, ch 276, § 1.
5-12-4. Members receive no compensation--Reimbursement of expenses.
No member of such Building Authority shall receive any compensation for services rendered under this chapter. However, members shall be reimbursed for necessary expenses incurred in connection with duties and powers prescribed by this chapter.
Source: SL 1967, ch 276, § 1.
5-12-5. Employment of personnel.
The Building Authority shall possess the power to employ agents and employees necessary to carry out the duties and purposes of the authority.
Source: SL 1967, ch 276, § 5.
5-12-6. Common seal of authority.
The Building Authority shall have the power to have and use a common seal and alter the same at pleasure.
Source: SL 1967, ch 276, § 5.
5-12-7. Purposes of authority.
The purposes of this authority are:
(1) To build and otherwise provide hospital, housing, correctional facilities, administrative, classroom, dining halls, fieldhouses, parking facilities, union buildings, library, recreational, laboratory, office, and similar facilities for use by the State of South Dakota;
(2) To serve the Legislature by making reports concerning the providing of such facilities; and
(3) To make, and undertake commitments to make, loans to farmers or ranchers who are participants in the United States Department of Agriculture Conservation Reserve Program.
Source: SL 1967, ch 276, § 2; SL 1988, ch 50, § 2; SL 1988, ch 51, § 1; SL 2023, ch 82, § 4.
5-12-8. Studies and investigations of land needs.
The authority may make thorough and continuous studies and investigations of land located within the State of South Dakota that is highly-erodible cropland and which is subject to a contract with the United States secretary of agriculture pursuant to the United States Conservation Reserve Program.
Source: SL 1967, ch 276, § 3; SL 1988, ch 50, § 3; SL 1988, ch 51, § 2; SL 1994, ch 50, § 1.
5-12-8.1. Additional powers with respect to projects under § 5-12-8.
In addition to any other powers granted to the authority pursuant to this chapter, with respect to projects of the kind listed in § 5-12-8, the authority may:
(1) Make and execute contracts and all other instruments necessary or convenient for the performance of its duties and the exercise of its powers and functions under this chapter;
(2) Employ fiscal consultants, engineers, attorneys, and such other consultants and employees as may be required and contract with the South Dakota Housing Development Authority to provide staff and support services;
(3) Procure insurance against any loss in connection with the property and other assets, including loans and loan notes in such amounts and from such insurers as it may deem advisable;
(4) Procure insurance, letters of credit, guarantees, or other credit enhancement arrangements from any public or private entities, including any department, agency, or instrumentality of the United States, for payment of all or any portion of any bonds issued by the authority, including the power to pay premiums, fees or other charges on any such insurance, letters of credit, guarantees, or credit arrangements;
(5) Receive and accept from any source aid or contributions of moneys, property, labor, or other things of value to be held, used, and applied to carry out the purposes of this chapter subject to the conditions upon which the grants or contributions are made, including, but not limited to, gifts or grants from any department, agency, or instrumentality of the United States for any purpose consistent with the provisions of this chapter;
(6) Enter into agreements with any department, agency, or instrumentality of the United States or this state and with lenders or others and enter into loan agreements, sales contracts and leases, or other financing arrangements with contracting parties for the purpose of planning, regulating and providing for the financing or refinancing of any loans to participants in the United States Department of Agriculture Conservation Reserve Program;
(7) Enter into contracts or agreements with lenders for the servicing and processing of loans or with any person or entity providing credit enhancement for the bonds of the authority;
(8) Cooperate with and exchange services, personnel and information with any federal, state, or local governmental agency;
(9) Sell, at public or private sale, with or without public bidding, any loan or other obligation held by the authority;
(10) Foreclose any mortgages, deeds of trust, notes, debentures, bonds, and other security interests held by it, either by action or by exercise of a power of sale, and to sell the equity of redemption in said security interests in accordance with the terms of said instruments and applicable state law, and to take all other actions necessary to enforce any obligation held by it;
(11) Purchase the equity of redemption in any such mortgage, deed of trust, debenture, bond, or other security interest;
(12) Mortgage, pledge, assign, or grant security interests in any or all of its notes or other instruments, contract rights or other property, including, but without limitation to, any receipts from insurance on or guarantees of any of its notes or other instruments, as security for the payment of the principal of, premium, if any, and interest on any bonds issued by the authority, or as security for any credit enhancement or other agreements made in connection therewith, whether then owned or thereafter acquired, and to pledge the revenues from which said bonds are payable and any other available revenues or assets as security for the payment of the principal of, premium, if any, and interest on said bonds and any agreements made in connection thereof;
(13) Enter into agreements for management on behalf of the authority of any of its properties upon such terms and conditions as may be mutually agreeable;
(14) Sell, exchange, donate, and convey any or all of its properties whenever the board shall find such action to be in furtherance of the purposes for which the authority was organized;
(15) Do any act and execute any instrument which in the authority's judgment is necessary or convenient to the exercise of the powers granted by this chapter or reasonably implied from it; and
(16) Promulgate rules pursuant to chapter 1-26 to implement the provisions of this chapter.
Source: SL 1988, ch 50, § 10.
5-12-10. Transfer of state property to authority.
Any department, board, commission, agency, or officer of this state or the Board of Regents of the State of South Dakota, may transfer jurisdiction of or title to any property under its or his control to the Building Authority when such transfer is approved, in writing by the Governor as being advantageous to the state.
Source: SL 1967, ch 276, § 4.
5-12-11. Power of authority to acquire property--Methods of acquisition.
The Building Authority may acquire by purchase, condemnation (including the power of condemnation in accordance with chapter 21-35), gift or otherwise, construct, complete, remodel, maintain, and equip buildings and other facilities as the Legislature by law declares to be in the public interest. In the course of such activities, the authority may acquire property of any kind and description, whether real, personal or mixed, by gift, purchase or otherwise. It may also acquire real estate of the State of South Dakota controlled by any officer, department, board, commission, or other agency of the state, the jurisdiction of which is transferred by such officer, department, board, commission, or other agency, to the authority.
Source: SL 1967, ch 276, § 5; SL 1994, ch 50, § 2.
5-12-11.1. Standards and specifications to accommodate persons with disabilities.
The standards and specifications set forth in § 5-14-13 shall be adhered to by the Bureau of Human Resources and Administration during the construction phase and by the appropriate state agency thereafter in those buildings and facilities constructed by the South Dakota Building Authority or any subdivision thereof if the construction was commenced after January 26, 1992, and in all new construction thereafter.
Source: SL 1972, ch 30; SL 1994, ch 50, § 3; SL 1994, ch 52, § 3; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-12-12. Plans and specifications for projects to be undertaken.
The Board of Regents and the Bureau of Human Resources and Administration on behalf of the executive branch or other agency of state government shall prepare plans and specifications for, and have supervision over, any project to be undertaken by the Building Authority for their use. The Building Authority may only execute those project contracts which are recommended by the Board of Regents, or the Bureau of Human Resources and Administration on behalf of the executive branch, or other agency of state government. Plans and specifications shall be approved by the lessee provided for under § 5-12-13, except as indicated above.
Source: SL 1967, ch 276, § 5; SL 1989, ch 20, § 60; SL 1994, ch 50, § 4; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-12-13. Lease of facilities and sites to state agencies authorized--Commencement of payments under lease.
The Building Authority may execute leases of facilities and sites to, and charge for the use of any such facilities and sites by the Board of Regents, any officer, department, board, commission, or other agency of the State of South Dakota, or the commissioner of human resources and administration if the commissioner is requested to, by and on behalf of, or for the use of, any officer, department, board, commission, or other agency of the State of South Dakota. The leases may be entered into contemporaneously with any financing to be done by the authority and payments under the terms of the lease shall begin at any time after execution of any such lease.
Source: SL 1967, ch 276, § 5; SL 1989, ch 20, § 61; SL 1994, ch 50, § 5; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-12-14. Terms, conditions, and rental under leases--Annual extension provision.
Leases may be
(1) Upon such terms, conditions, and rentals, subject to available appropriations, as in the judgment of the building authority are in the public interest, or
(2) For a term of one year from the time the building is completed and ready for occupancy, with an option in the lessee to extend the term of the lease for a term of one year from the expiration of the original term of the lease and for one year from the expiration of each extended term of the lease, until the original term of the lease has been extended for a total number of years to be agreed upon by the parties at a rental which, if paid for the original term and for each of the full number of years for which the term of the lease may be extended, will amortize the total cost of the erection of the building and appurtenances.
The rental shall be paid at such times as the parties to the lease agree upon.
Source: SL 1967, ch 276, § 5.
5-12-15. Lessee's option to purchase--Conveyance on exercise of option.
The lease may provide that the lessee may, at the expiration of the original or any extended term, purchase the leased premises at a stated price, which shall be the balance of the total cost of the erection of the building and appurtenances not amortized by the payments of rents previously made by the lessee. The lease may provide that in the event of the exercise of the option to purchase the leased premises or in the event the lease has been extended for the full number of years which it is agreed the same may be extended, and all rents and payments provided for in the lease have been made, the lessor shall convey the premises to the lessee in fee simple with covenant of general warranty of title.
Source: SL 1967, ch 276, § 5; SL 1983, ch 32, § 4.
5-12-16. Taxes and insurance added to rental properties--Authorization to self-insure.
The lease may provide that the lessee shall, as additional rent for the leased premises, pay, or provide for the payment of, all taxes assessed against the leased premises if any, and the cost of insuring the building erected thereon against loss or damage by fire and windstorm in such sum as may be agreed by the parties thereto. Any lessee of a facility constructed, owned or leased by the authority is hereby authorized to self-insure the facility.
Source: SL 1967, ch 276, § 5; SL 1986, ch 50, § 1; SL 1988, ch 50, § 4.
5-12-17. Authority's power to use facilities for other purposes on nonpayment of rent--Appropriations and funds from which rent payable.
The Building Authority may, in the event of nonpayment of rents reserved in such leases, maintain and operate such facilities and sites or execute leases thereof to others for any suitable purposes. Such leases to the officers, departments, boards, commissions, other agencies, or the Board of Regents of the State of South Dakota shall contain the provision that rents under said leases shall be payable solely from appropriations to be made by the Legislature for the payment of such rent and any revenues derived by the authority from the operation of the leased premises; and, in the case of the Board of Regents, may contain an additional provision that rents under said leases may be payable from the educational facilities fund established by § 13-51-2.
Source: SL 1967, ch 276, § 5; SL 1975, ch 51, § 1; SL 1989, ch 20, § 62.
5-12-18. Costs and reserves to be covered by rent and charges.
The charges, fees, or rentals established by the Building Authority for the use of any facilities acquired, constructed, completed, remodeled, or equipped in whole or in part with the proceeds of the bonds issued as provided in this chapter shall be sufficient at all times to pay maintenance and operation costs for such facilities (unless under a lease maintenance and operation costs are otherwise provided for), principal of and interest on the bonds and a proportion of the administrative expenses of the authority as provided for by each lease, and such reserves as may be provided in the resolutions of issuance.
Source: SL 1967, ch 276, § 7.
5-12-19. Tax exemption of property owned or leased by authority--Exception.
Except as hereinafter provided, all land, improvements, and capital equipment owned by the Building Authority, or being leased or acquired by the authority pursuant to a lease having a fixed term plus renewal options exceeding three years, or a lease-purchase or installment purchase contract, shall constitute a separate class of property which is exempt from taxation. Land owned by the authority, or being leased or acquired by the authority, to accomplish projects of the kind listed in § 5-12-8 is not exempt from taxation.
Source: SL 1967, ch 276, § 14; SL 1983, ch 32, § 5; SL 1988, ch 50, § 5.
5-12-20. Resolutions for revenue bonds authorized--Purpose--Legislative approval required.
The Building Authority may provide by resolution for the issuance of negotiable revenue bonds for the purpose of paying all or any part of the cost of one or a combination of projects. However, no project may be let for construction, nor any revenue bonds be sold to raise the funds for payment of such construction until after the Legislature by law declares the project to be in the public interest and no revenue bonds may be sold to raise funds for the accomplishment of any project of the kind listed in this chapter until after the Legislature by law declares the project to be in the public interest.
Source: SL 1967, ch 276, § 10; SL 1973, ch 38; SL 1988, ch 50, § 6; SL 1994, ch 50, § 7.
5-12-21. Purposes for which bonds issued--Refunding and refinancing--Pledge of income.
To accomplish projects of the kind authorized in this chapter, the Building Authority may borrow money and issue and sell bonds in such amount or amounts as the authority may determine for the purpose of acquiring, constructing, completing, or remodeling, maintaining or equipping any such facility; refund and refinance the same from time to time as often as advantageous and in the public interest to do so; and pledge any and all income of the authority, and any revenues derived by the authority from the facilities, or any combination thereof, to secure the payment of the bonds and to redeem the bonds. All such bonds are subject to the provisions of §§ 5-12-22 to 5-12-25, inclusive. Any construction project in the amount of one million five hundred thousand dollars or more which is funded by the Building Authority may, at the option of the Building Authority, have a representative of the Building Authority act as a member of the State Building Committee pursuant to § 5-14-3.
Source: SL 1967, ch 276, § 5; SL 1975, ch 51, § 2; SL 1994, ch 50, § 8.
5-12-22. Terms and interest rate of bonds.
All such bonds shall mature within twenty-five years from date and shall bear interest at a rate to be negotiated and may be sold by the Building Authority in such manner as it may deem to be in the best public interest.
Source: SL 1967, ch 276, § 6; SL 1970, ch 39; SL 1980, ch 47, § 5; SL 1983, ch 28, § 5; SL 1988, ch 50, § 7.
5-12-23. Revenues and income from which bonds payable--Use of educational facilities fund--Disposition of revenues.
Such bonds shall be payable solely and only from:
(1) Revenues to be derived by the building authority from the operation of any such facilities acquired, constructed, completed, remodeled or equipped in whole or in part with the proceeds of the bonds;
(2) Income to be derived from rental leases to state departments, boards, commissions or other agencies, or from leases to others as provided in §§ 5-12-13 to 5-12-18, inclusive;
(3) In the case of leases involving institutions under the control of the board of regents, such funds in the educational facilities fund established by chapter 13-51, as are not otherwise appropriated, earmarked, or pledged;
(4) Revenues to be derived by the authority from any department, agency or instrumentality of the United States for any purpose consistent with the provisions of this chapter; and
(5) Revenues to be derived by the authority in connection with projects of the kind listed in this chapter from (a) the foreclosure of any mortgages, deeds of trust, notes, debentures, bonds, and other security interests held by it, or pledged and assigned by it in connection with bonds issued for such a project, either by action or by exercise of a power of sale, (b) the sale of the equity of redemption in said security interests in accordance with the terms of said instruments and applicable state law or (c) other actions to enforce any obligation held by it.
However, for any year in which the Legislature has appropriated funds for the payment of lease rentals with respect to a project of the kind described in this chapter, any revenues received by the authority, other than from the appropriation, as a result of such program shall be assigned to and deposited in the general fund.
Source: SL 1967, ch 276, § 6; SL 1975, ch 51, § 3; SL 1988, ch 50, § 8; SL 1991, ch 24, § 3; SL 1994, ch 50, § 9.
5-12-24. Execution and registration of bonds--Validity of signature by officers.
Such bonds shall be executed by such officers of the Building Authority as shall be designated by the authority, and shall be registered by the state auditor of the State of South Dakota. Any bonds bearing the signature of officers in office at the date of signing thereof shall be valid and binding for all purposes, notwithstanding that before delivery thereof any or all such persons whose signature appears thereon shall have ceased to be such officers.
Source: SL 1967, ch 276, § 6.
5-12-25. Restrictions on obligation stated on face of bonds.
Each such bond shall state upon its face that it is payable solely from revenues derived by the Building Authority from the operation of facilities acquired, constructed, completed, remodeled, or equipped in whole or in part with the proceeds of the sale of such bonds, including income to be derived from rental leases as provided in §§ 5-12-13 to 5-12-18, inclusive. Each such bond shall state upon its face that it does not constitute an obligation of the State of South Dakota within the meaning of any provisions of the Constitution or statutes of the State of South Dakota.
Source: SL 1967, ch 276, § 6; SL 1975, ch 51, § 4.
5-12-26. Creation of state obligation not authorized.
Nothing in this chapter shall be construed to authorize the Building Authority or any department, board, commission, or other agency to create an obligation of the State of South Dakota within the meaning of the Constitution or statutes of South Dakota.
Source: SL 1967, ch 276, § 13.
5-12-27. Contract with bondholders--Bondholders' remedies.
The provisions of this chapter and of any resolution or proceeding authorizing the issuance of bonds shall constitute a contract with the holders of such bonds. The provisions thereof shall be enforceable either in law or in equity, by suit, action, mandamus, or other proceeding in any court of competent jurisdiction to enforce and compel the performance of any duties required by this chapter or any resolution or proceeding authorizing the issuance of such bonds, including the establishment of sufficient charges, fees, or rentals and the application of the income from a project under this chapter, as provided in § 5-12-23.
Source: SL 1967, ch 276, § 12.
5-12-27.1. Refunding bonds authorized--Purposes.
The Building Authority may issue negotiable refunding bonds to refund:
(1) Unpaid matured bonds;
(2) Unpaid matured coupons evidencing interest upon its unpaid matured bonds; and
(3) Interest at the coupon rate upon its unpaid matured bonds that has accrued since the maturity of these bonds.
Source: SL 1975, ch 50, § 1.
5-12-27.2. Amount of refunding bonds.
The Building Authority may issue negotiable refunding bonds under §§ 5-12-27.1 to 5-12-27.4, inclusive, to refund bonds at or prior to their maturity or which by their terms are subject to redemption before maturity, or both, in an amount necessary to refund:
(1) The principal amount of the bonds to be refunded;
(2) The interest to accrue up to and including the maturity date or dates, or to the next succeeding redemption date thereof; and
(3) The applicable redemption premiums, if any.
Source: SL 1975, ch 50, § 2.
5-12-27.3. Exchange or sale of refunding bonds--Proceeds of sale--Cancellation of bonds and coupons--Evidence of discharge of interest obligation.
Refunding bonds issued pursuant to §§ 5-12-27.1 to 5-12-27.4, inclusive, may be exchanged for the bonds to be refunded on a par for par basis of the bonds, interest coupons and interest not represented by coupons, if any, or may be sold at not less than par, or may be exchanged in part or sold in part, and the proceeds received at any such sale shall be used to pay the bonds, interest coupons and interest not represented by coupons, if any. Bonds and interest coupons which have been received in exchange or paid shall be canceled and the obligation for interest, not represented by coupons, which has been discharged, shall be evidenced by a written acknowledgment of the exchange or payment thereof.
Source: SL 1975, ch 50, § 1.
5-12-27.4. Exchange or sale of bonds--Disposition of proceeds of sale.
Refunding bonds issued pursuant to §§ 5-12-27.1 to 5-12-27.4, inclusive, may be exchanged for not less than an equal principal amount of bonds to be refunded or may be sold at not less than par, or may be exchanged in part and sold in part. All proceeds received at the sale thereof, excepting the accrued interest received, shall be used:
(1) If the bonds to be refunded are then due, for the payment thereof;
(2) If the bonds to be refunded are voluntarily surrendered with the consent of the holder or holders thereof, for the payment thereof;
(3) If the bonds to be refunded are then subject to prior redemption by their terms, for the redemption thereof;
(4) If the bonds to be refunded are not then subject to payment or redemption, to purchase direct obligations of, or those guaranteed by the United States of America so long as such obligations will mature at such time or times, with interest thereon or the proceeds received therefrom, to provide funds adequate to pay when due or called for redemption prior to maturity the bonds to be refunded, together with the interest accrued thereon and any redemption premium due thereon, and such proceeds or obligations of the United States of America shall, with all other funds legally available for such purpose, be deposited in escrow with a banking corporation, or national banking association, located in and doing business in the State of South Dakota, with the power to accept and execute trusts, or any successor thereto, which is also a member of the federal deposit insurance corporation and of the federal reserve system, to be held in an irrevocable trust solely for and until the payment and redemption of the bonds so to be refunded, and any balance remaining in said escrow after the payment and retirement of the bonds to be refunded shall be returned to said authority to be used and held for use as revenues pledged for the payment of said refunding bonds; or
(5) For any combination of the foregoing subdivisions of this section.
Source: SL 1975, ch 50, § 3.
5-12-27.5. Assistance in conserving and improving soil and water resources of highly erodible cropland by means of loans--Revenue bonds and interim notes authorized.
It being declared to be in the public interest, the South Dakota Building Authority may, pursuant to chapter 5-12, finance loans to participants in a program of the United States to assist owners and operators of highly-erodible cropland in conserving and improving the soil and water resources of their farms or ranches within the state and may, for the purpose of financing such loans, issue revenue bonds or interim notes, pursuant to the powers vested in the authority.
Source: SL 1988, ch 52, § 1.
5-12-27.6. No indebtedness to be charged against state.
No indebtedness, bond, or obligation incurred or created under authority of §§ 5-12-27.5 to 5-12-27.8, inclusive, may be or become a lien, charge or liability against the State of South Dakota, nor against the property or funds of the State of South Dakota within the meaning of the Constitution or statutes of South Dakota.
Source: SL 1988, ch 52, § 2.
5-12-27.7. Acceptance and expenditure of gifts, contributions, etc., authorized.
The Building Authority and the State of South Dakota through any of its departments, agencies, or bureaus, may accept and expend for the purposes stated in § 5-12-27.5, any funds obtained for such purposes from gifts, contributions, or other sources, including any unit of government.
Source: SL 1988, ch 52, § 3.
5-12-27.8. Lease and sublease agreements with South Dakota Building Authority authorized to support purpose and payment of revenue bonds or interim notes.
The State of South Dakota through any of its departments, agencies, or bureaus, may make and enter into lease and sublease agreements with the South Dakota Building Authority and make rental payments under the terms thereof, pursuant to chapter 5-12, from appropriations to be made by the Legislature for the payment of such rent to support the purpose and the payment of revenue bonds or interim notes issued in connection therewith for the purposes in § 5-12-27.5.
Source: SL 1988, ch 52, § 4.
5-12-28. Interim notes authorized--Purposes of borrowing.
In addition to the permanent financing authorized by §§ 5-12-20 to 5-12-27, inclusive, the South Dakota Building Authority may borrow money and issue interim notes in evidence thereof for any of the projects, or to perform any of the duties authorized under this chapter, and in addition may borrow money and issue interim notes for planning, architectural, and engineering services, acquisition of land, purchase of equipment, movable or otherwise as set forth in §§ 5-12-29 to 5-12-33, inclusive.
Source: SL 1967, ch 276, § 5.
5-12-29. Resolution for issuance of interim notes--Interest rate--Maturity date.
Whenever the Building Authority deems it advisable and in the interests of the authority to borrow funds temporarily for any of the purposes enumerated in § 5-12-28, the authority may from time to time, and pursuant to appropriate resolution, issue interim notes to evidence the borrowings, including funds for the payment of interest on borrowings and funds for all necessary and incidental expenses in connection with any of the purposes provided for by this section and this chapter until the date of the permanent financing. Any resolution authorizing the issuance of these notes shall describe the project to be undertaken and shall specify the principal amount, rate of interest and maturity date, but not to exceed five years from date of issue, and other terms as may be specified in the resolution. However, the time of payment of any such notes may be extended for a period not exceeding three years from the maturity date thereof.
Source: SL 1967, ch 276, § 5; SL 1975, ch 52, § 1; SL 1980, ch 47, § 6; SL 1983, ch 28, § 6.
5-12-30. Terms and registration of interim notes--Redemption prior to maturity--Execution of notes--Pledge of income and revenue.
The Building Authority may provide for the registration of the notes in the name of the owner either as to principal alone, or as to both principal and interest, on such terms and conditions as the authority may determine by the resolution authorizing their issue. The notes shall be issued from time to time by the authority as funds are borrowed, in the manner the authority may determine. Interest on the notes may be made payable semiannually, annually, or at maturity. The notes may be made redeemable, prior to maturity, at the option of the authority, in the manner and upon the terms fixed by the resolution authorizing their issuance. The notes may be executed in the name of the authority by the chairman of the authority or by any other officer or officers of the authority as the authority by resolution may direct, shall be attested by the secretary or such other officer or officers of the authority as the authority may by resolution direct, and be sealed with the authority's corporate seal. All such notes and the interest thereon may be secured by a pledge of any income and revenue derived by the authority from the project to be undertaken with the proceeds of the notes, after deducting from such income and revenue any reasonable and necessary maintenance and operation expenses, and shall be payable solely from the proceeds to be derived from the sale of any revenue bonds for permanent financing authorized to be issued under §§ 5-12-20 to 5-12-27, inclusive, and from the property acquired with the proceeds of the notes.
Source: SL 1967, ch 276, § 5.
5-12-31. Additional provisions to secure payment of interim notes.
The Building Authority, in order further to secure the payment of the interim notes, is, in addition to the foregoing, authorized and empowered to make any other or additional covenants, terms, and conditions not inconsistent with the provisions of §§ 5-12-11 and 5-12-12, and do any and all acts and things as may be necessary or convenient or desirable in order to secure payment of its interim notes, or, in the discretion of the authority, as will tend to make the interim notes more acceptable to lenders, notwithstanding that the covenants, acts or things may not be enumerated herein; provided, however, that nothing contained in this section shall authorize the authority to secure the payment of the interim notes out of property or facilities, other than the facilities acquired with the proceeds of the interim notes, and any net income and revenue derived from the facilities and the proceeds of revenue bonds as hereinabove provided.
Source: SL 1967, ch 276, § 5.
5-12-32. Debt limitations not applicable to interim notes--Personal liability not created by execution of notes.
The interim notes shall not constitute an indebtedness within the meaning of any constitutional or statutory debt limitation or restriction.
No member, officer, agent, or employee of the authority, nor any other person who executes interim notes, shall be liable personally by reason of the issuance thereof.
Source: SL 1967, ch 276, § 5.
5-12-33. Payment of interim notes or purchase of government obligations with proceeds from sale of revenue bonds.
Contemporaneously with the issue of revenue bonds as provided by this chapter, all interim notes, even though they may not then have matured, shall be paid, both principal and interest to date of payment, from the funds derived from the sale of revenue bonds for the permanent financing and such interim notes shall be surrendered and canceled, or the proceeds at the sale of said bonds (excepting the accrued interest received) shall be used to purchase direct obligations of the United States of America so long as such obligations will mature at such time or times, with interest thereon or the proceeds received therefrom, to provide funds adequate to pay when due or called for redemption prior to maturity the notes to be refunded, together with the interest accrued thereon and any redemption premium due thereon, and such proceeds or obligations of the United States of America shall, with all other funds legally available for such purpose, be deposited in escrow with a banking corporation, or national banking association, located in and doing business in the State of South Dakota, with power to accept and execute trusts, or any successor thereto, which is also a member of the federal deposit insurance corporation and of the federal reserve system, to be held in an irrevocable trust solely for and until the payment and redemption of the notes so to be refunded, and any balance remaining in said escrow after the payment and retirement of the notes to be refunded shall be returned to said authority to be used and held for use as revenues pledged for the payment of said refunding bonds.
Source: SL 1967, ch 276, § 5; SL 1975, ch 52, § 2.
5-12-34. Disposition of income under chapter--Public building fund.
The gross total income from:
(1) The sale of bonds;
(2) Charges, fees, or rentals; and
(3) All other revenue derived from any project undertaken pursuant to this chapter
shall be paid to the treasurer of the State of South Dakota. Said income shall be held by him in trust for the purposes of this chapter, in a special fund known as "the public building fund." The state treasurer shall be ex officio custodian of such fund. Disbursements shall be made from such fund upon the order of the Building Authority.
Source: SL 1967, ch 276, § 8.
5-12-35. Accounts maintained by authority--Purpose of disbursements from public building fund.
The Building Authority shall keep account of the gross total income derived from each separate project or any combination thereof undertaken pursuant to this chapter. Disbursements from a given account in the public building fund shall be ordered by the authority only for the payment of:
(1) The cost of maintenance and operation of the facility or facilities, unless otherwise provided for;
(2) The principal of and interest on the bonds issued for each project, or combination thereof; and
(3) Any other purposes set forth in the resolution authorizing the issuance of said bonds.
Source: SL 1967, ch 276, § 9.
5-12-36. Authority to convey property to state when debt paid or payment provided for--Reversion to authority.
To accomplish projects of the kind listed in this chapter, the Building Authority may convey property, without charge, to the State of South Dakota, if all debts which have been secured by the income from the property have been paid. The authority may transfer title and jurisdiction to the State of South Dakota of facilities, for which bonds have been issued and payment for the bonds has been provided for by an escrow. The facility shall revert to the authority if the lessee fails to make lease payments in connection with the facility until the bonds are paid.
Source: SL 1967, ch 276, § 5; SL 1986, ch 50, § 2; SL 1994, ch 50, § 10.
5-12-37. Record of rental payments under lease--Conveyance to lessee after amortization of debt.
An accurate record shall be kept of the rental payments under each lease entered into by the Building Authority and any officer, department, board, commission, or other agency of the State of South Dakota, or the commissioner of human resources and administration when requested to enter into such leases as provided in §§ 5-12-13 to 5-12-16, inclusive, and when the rentals applicable to each project or facility, or any combination thereof, acquired, constructed, completed, remodeled, maintained, and equipped have been paid, in amounts sufficient to amortize and pay the principal of and interest upon the total principal amounts of bonds of the authority issued to pay the cost of each project or facility, including maintenance and operation expenses and that proportion of the administrative expense of the authority as provided for by each lease, the property shall be conveyed without charge to the lessee.
Source: SL 1967, ch 276, § 10; SL 1988, ch 50, § 9; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-12-38. Annual audit.
The Building Authority shall be audited annually in accordance with chapter 4-11.
Source: SL 1967, ch 276, § 11; SL 1989, ch 51.
5-12-38.1. Informational budget required.
Notwithstanding any other provisions of law, all funds received by the Building Authority shall be set forth in an informational budget as described in § 4-7-7.2 and be annually reviewed by the Legislature.
Source: SL 1984, ch 4, § 2.
5-12-39. Contractual power of authority.
The Building Authority shall possess the power to enter into contracts regarding any matter connected with any corporate purpose within the objects and purposes of this chapter.
Source: SL 1967, ch 276, § 5.
5-12-40. Bylaws, rules, and regulations of authority.
To accomplish projects of the kind listed in this chapter, the authority may adopt all necessary bylaws, rules, and regulations for the conduct of the business and affairs of the authority, and for the management and use of facilities and sites acquired under the powers granted by this chapter.
Source: SL 1967, ch 276, § 5; SL 1994, ch 50, § 11.
5-12-41. Severability of provisions.
If any clause or other portion of this chapter shall be held invalid, that decision shall not affect the validity of the remaining portions of this chapter. It is hereby declared that all such remaining portions of this chapter are severable, and that the Legislature would have enacted such remaining portions if the portions that may be so held to be invalid had not been included in this chapter.
Source: SL 1967, ch 276, § 15.
5-12-42. Sale and lease-back arrangements--Sales and land leases authorized--Use of proceeds.
Improved or unimproved land held by or transferred to the Building Authority pursuant to § 5-12-10, may be leased and the improvements thereon sold to a person, partnership, association, limited liability company, or corporation. The improvements may be sold only at their fair market value as determined by the authority, but consideration for a land lease may be nominal. The authority shall obtain and consider when determining the fair market value of improvements to be sold, at least one independent appraisal. The proceeds of sale shall be paid to the Building Authority trust account and shall be applied to such purpose, if any, as may be required by the State Constitution or any contract of the state. If no specific disposition of the proceeds, including any investment income thereon, or any portion thereof is required by the Constitution or any state contract, the proceeds, including any investment income thereon, shall be used in or expended for the acquisition of land, buildings, water development, or other improvements of a capital nature as the Legislature or the special committee created in § 4-8A-2 and Governor may specifically direct. Contracts of the state shall include any contract now in existence and any contract entered into in connection with any sale hereunder and the lease-back of the improvements sold pursuant to § 5-12-43. Except as provided in chapters 5-6 to 5-8, inclusive, all leases and sales of land and improvements may be made without reservation of timber, mineral, or other similar rights.
Source: SL 1983, ch 32, § 1; SL 1989, ch 212, § 2; SL 1994, ch 351, § 4.
5-12-43. Sale and lease-back arrangements--Contracts to acquire use or ownership authorized--Terms.
The Building Authority may enter into any contract necessary to acquire the right to use or the ownership, or both, of land leased and improvements sold by it under § 5-12-42, and any other improvements made upon such land, and capital equipment needed for the operation of the improvements or property to be acquired by it pursuant to § 5-12-11, including lease, lease-purchase, and, subject to compliance with the provisions of S.D. Const., Art. XIII, § 1, installment purchase contracts. No term of an installment purchase contract may exceed thirty years. The authority may establish the terms of the contracts, subject to the approval of the Governor. The authority may include in such contracts the following provisions:
(1) In lease contracts, options to purchase the property subject to the lease or the lessor's interest therein, and provisions for the payment by lessee to lessor of rent net of all other costs and expenses of ownership, operation, maintenance, and insurance of the leased property by the authority as agent of the lessor, subject only to the laws, rules and regulations as are applicable to the lessor;
(2) In lease-purchase contracts, provisions of the type specified in subdivision (1), and provisions for designating a portion of the periodic payments to be made thereunder as interest, for prepayment, and for acquisition of unencumbered title or fee title to the property subject to the contract.
Source: SL 1983, ch 32, § 2.
5-12-44. Provisions applicable to contracts to acquire use or ownership.
The provisions of §§ 5-12-13 to 5-12-18, inclusive, apply to all land, improvements and capital equipment which the Building Authority may occupy or use pursuant to any contract described in § 5-12-43.
Source: SL 1983, ch 32, § 3.
5-12-45. Revenue bonds to finance sale and lease-back arrangements--Lending proceeds--Refund or refinance of obligations.
The Building Authority may provide, by resolution, for the issuance and sale of revenue bonds to finance all or any part of the capital cost of any land, buildings, or other improvements or equipment of a capital nature to be acquired by any person, partnership, association, limited liability company, or corporation and leased or acquired by the authority pursuant to § 5-12-43, and may loan the proceeds thereof to such person, partnership, association, or corporation. The issuance of the bonds is declared to be for a public purpose, and in selling, securing, and issuing the bonds and applying the proceeds thereof the authority may exercise all powers conferred on any municipality under chapter 9-54, and may pay from the proceeds the cost of any letter of credit, bond insurance, bond guarantee, put option, or other contractual right deemed necessary or desirable to secure the payment of or reduce the net interest cost on the bonds. The provisions of § 5-12-21, except the last sentence thereof, and §§ 5-12-23 to 5-12-27, inclusive, are applicable to the bonds only to the extent they are not inconsistent with the provisions of chapter 9-54. The authority shall also have the powers specified in §§ 5-12-27.1 to 5-12-39, inclusive, with respect to projects and bonds of the type herein described.
The Building Authority may provide, by resolution, for the issuance and sale of revenue obligations to refund or refinance obligations issued pursuant to §§ 5-12-42 and 5-12-43. In connection with such refunding or refinancing, the authority need not determine the fair market value of the improvements to be sold as otherwise required by § 5-12-42. For sufficient consideration received by the authority, as determined by the authority, the authority may enter into contracts with banks, investment bankers, or other purchasers for the sale and issuance of such revenue obligations to refund or refinance obligations issued pursuant to §§ 5-12-42 and 5-12-43, which contracts of sale shall be binding on the authority for the period stated therein, but not exceeding three years.
Source: SL 1983, ch 32, § 6; SL 1994, ch 50, § 13; SL 1994, ch 351, § 5.
5-12-46. Legislative approval required for sale and lease-back arrangements.
No sale or lease-back of any land or improvements as described in §§ 5-12-42 and 5-12-43 shall be initiated later than July 1, 1984, without prior legislative approval.
Source: SL 1983, ch 32, § 8.
5-12-47. Revenue obligations--Issuance--Purpose--Funds for payment.
The authority, with the approval of the Governor, may by resolution provide for the issuance and sale of revenue obligations to finance all or any part of the capital cost of acquiring, constructing, furnishing, equipping, or repairing any state building owned or to be owned by it and for this purpose may exercise all powers conferred upon it by this chapter. Revenue obligations issued pursuant to this section shall be payable solely from moneys, including investment income, derived by the authority from transactions described in §§ 5-12-42 and 5-12-43, transactions authorized by the Legislature and transactions initiated by resolutions of the authority adopted prior to July 1, 1984. Such moneys may be pledged for this purpose.
Source: SL 1985, ch 40, § 1.
5-12-47.1. Payment of lease rental obligations to South Dakota Building Authority by Bureau of Finance and Management.
The funds appropriated in SL 2014, ch 35, § 1 shall be used to pay or prepay lease rental and associated fees in the amounts specified below to the South Dakota Building Authority relating to the leases between the South Dakota Building Authority and the departments or offices and the related real or personal property financed by the South Dakota Building Authority all as described below:
(1) Lease rentals and fees in an estimated amount of eleven million eighteen thousand eight hundred fifty-three dollars in connection with the lease between the South Dakota Building Authority and the Department of Human Services relating to the George S. Mickelson Center for the Neurosciences financed with the proceeds of a sale by the South Dakota Building Authority of series 1992 bonds and refinanced with proceeds of series 1993A lease revenue trust certificates;
(2) Lease rentals and fees in an estimated amount of six million forty thousand two hundred ninety-three dollars in connection with the lease between the South Dakota Building Authority and the Office of Attorney General and Department of Public Safety relating to the George S. Mickelson Criminal Justice Center financed with proceeds of the South Dakota Building Authority's series 2005B bonds;
(3) Lease rentals and fees in an estimated amount of thirty-two million four hundred sixty-five thousand five hundred forty dollars in connection with a lease between the South Dakota Building Authority and the Board of Regents relating to the portion of the costs of the science facilities and laboratories at various public universities supported by rent paid from general fund appropriations by the Legislature and financed by proceeds of the South Dakota Building Authority's series 2008 bonds; and
(4) Lease rentals and fees in an estimated amount of six million seven hundred thirty-two thousand five hundred sixty-five dollars in connection with a lease between the South Dakota Building Authority and the Department of Human Services relating to the George S. Mickelson Center for the Neurosciences dietary wing financed with the proceeds of the South Dakota Building Authority's series 2010B bonds.
Source: SL 2014, ch 35, § 2, eff. Mar. 28, 2014.
5-12-47.2. Irrevocable escrow agreement for defeasance and payment of lease revenue trust certificates and bonds--Arrangements to pay governmental expenses.
The South Dakota Building Authority may enter into an irrevocable escrow agreement to provide for the defeasance and payment of the series 1993A lease revenue trust certificates, the series 2005B bonds and the series 2008 bonds issued to finance the costs of the buildings and other real or personal property described in subdivisions 5-12-47.1(1), (2) and (3). The authority may enter into such other arrangements to pay or prepay, from time to time, any governmental expenses permissible under chapter 5-12, including payment or prepayment of debt service and associated fees and expenses relating to series 2010B bonds issued to finance the costs of the buildings and other real or personal property described in subdivision 5-12-47.1(4). The authority may contract with a third party for any of the purposes of this section. Upon determination by the authority of the amounts necessary for payment or prepayment of the bonds and other governmental expenses described in this section, and any associated fees and expenses, any remaining funds shall be transferred to the general fund at the end of the fiscal year in which SL 2014, ch 35 was enacted. Thereafter, as of the end of each fiscal year to and including the fiscal year ending June 30, 2021, the South Dakota Building Authority shall file an annual report with the Bureau of Finance and Management specifying any lease rentals, any fees received pursuant to § 5-12-47.1 and this section, and any interest earnings thereon, which the authority has determined are no longer expected to be required for the purposes set forth in § 5-12-47.1. Any such amounts not then expected to be required shall be deposited into the general fund with thirty days of the filing of the annual report. Any lease rentals and fees received by the authority pursuant to § 5-12-47.1 and this section, or interest earnings thereon, which are not applied by June 2, 2021, to pay or prepay amounts described in this section, shall be deposited into the general fund by June 30, 2021.
Source: SL 2014, ch 35, § 3, eff. Mar. 28, 2014.
5-12-48. Definition of terms.
Terms used in §§ 5-12-48 to 5-12-61, inclusive, mean:
(1) "Authority," the South Dakota Building Authority, a body corporate and politic, organized and existing under chapter 5-12;
(2) "Bonds," bonds, bond anticipation notes, notes, certificates of ownership or indebtedness, or other obligations issued, incurred, or otherwise created under the authority of §§ 5-12-48 to 5-12-61, inclusive, and payable directly or indirectly out of or representing an interest in tobacco settlement revenues or other rights under or with respect to the master settlement agreement;
(3) "Corporation," the special purpose body corporate and politic established by the authority by resolution as provided in § 5-12-50;
(4) Repealed by SL 2013, ch 28, § 1;
(5) "Master settlement agreement," the master settlement agreement entered into on November 23, 1998, by attorneys general from the several states (including the State of South Dakota) and various tobacco companies, as now or hereafter amended, supplemented, or restated;
(6) "Master settlement escrow agent," the escrow agent under the master settlement agreement;
(7) "Net proceeds of bonds," the original proceeds of bonds issued under §§ 5-12-48 to 5-12-61, inclusive, less any amounts applied or to be applied to pay transaction and administrative expenses and to fund any reserves deemed necessary or appropriate by the corporation, but does not include any investment earnings realized thereon;
(8) "Net proceeds of sale of tobacco settlement revenues," the net proceeds of bonds plus any residual interest in tobacco settlement revenues received or to be received by the State of South Dakota from time to time as a result of any sale, conveyance, or other transfer authorized in § 5-12-49, but does not include any investment earnings realized thereon;
(9) Repealed by SL 2013, ch 28, § 1;
(10) "Permitted investments," any investment authorized by §§ 4-5-23 and 4-5-26 together with noncollateralized direct obligations of any bank or savings institution, insurance company, or bank or insurance holding company if the institution or holding company is rated in the highest four classifications by at least one standard rating service and any bond, note, or other obligation of any state or any agency, authority, or other instrumentality of any state or political subdivision thereof if the bond, note, or other obligation is rated in the four highest classifications established by at least one standard rating service;
(11) "Residual interest in tobacco settlement revenues," any tobacco settlement revenues not required to pay principal or interest on bonds or administrative or transaction expenses of the corporation or authority or to fund reserves or other requirements relating to bonds issued, incurred, or otherwise created under §§ 5-12-48 to 5-12-61, inclusive;
(12) Repealed by SL 2013, ch 28, § 1;
(13) "Tobacco settlement revenues," all of the amounts now or hereafter payable to the State of South Dakota under or in connection with the master settlement agreement.
Source: SL 2001, ch 27, § 1; SL 2013, ch 28, § 1.
5-12-48.1. Authority may invest funds in certain permitted investments.
In addition to all other powers established pursuant to chapter 5-12, the building authority may invest its funds or the funds under its control or direction in permitted investments as defined in subdivision 5-12-48(10).
Source: SL 2002, ch 31, § 1.
5-12-49. Transfer and sale of state's right to tobacco settlement revenues--Disposition of funds--Written agreement--Filing of agreement.
At any one time or from time to time, all or any portion of the right, title, and interest of the State of South Dakota in, to, and under the master settlement agreement, including the right to receive and collect tobacco settlement revenues, may be sold, conveyed, or otherwise transferred by the state to the authority or to a corporation established by the authority under §§ 5-12-48 to 5-12-61, inclusive, in exchange for the net proceeds of bonds and a right to the residual interest in tobacco settlement revenues. The net proceeds of bonds and the residual interest in tobacco settlement revenues shall be deposited to the education enhancement trust fund established pursuant to S.D. Const., Art. XII, § 6. Any sale, conveyance, or other transfer authorized by this section shall be evidenced by an instrument or agreement in writing signed on behalf of the state by the Governor. The Governor shall file a certified copy of the instrument or agreement with the Legislature promptly upon execution and delivery thereof. The instrument or agreement may include an irrevocable direction to the master settlement escrow agent to pay all or a specified portion of amounts otherwise due to the State of South Dakota under or in connection with the master settlement agreement, including, without limitation, all or any portion of tobacco settlement revenues directly to or upon the order of the authority or corporation, as the case may be, or to any escrow agent or any trustee under an indenture or other agreement securing any bonds issued, incurred, or created under §§ 5-12-48 to 5-12-61, inclusive. The irrevocable direction to the master settlement escrow agent may include the direction to pay any residual interest in tobacco settlement revenues initially to or upon the order of the authority or corporation or to any escrow agent or any trustee under an indenture or other agreement securing any bonds. Upon the filing of a certified copy of the instrument or agreement by the Governor, the sale, conveyance, or other transfer of rights under or with respect to the master settlement agreement, including the right to receive the tobacco settlement revenues, shall, for all purposes, be a true sale and absolute conveyance of all right, title, and interest therein described in accordance with the terms thereof, valid, binding, and enforceable in accordance with the terms thereof and such instrument or agreements and any related instrument, agreement, or other arrangement, including any pledge, grant of security interest, or other encumbrance made by the corporation or the authority to secure any bonds issued, incurred, or created by the corporation or the authority, are not subject to disavowal, disaffirmance, cancellation, or avoidance by reason of insolvency of any party, lack of consideration, or any other fact, occurrence, or rule of law. The procedures and requirements set forth in this section shall be the sole procedures and requirements applicable to the sale of the state's rights under the master settlement agreement, including the sale of tobacco settlement revenues, and it is not necessary to satisfy or comply with any other existing law which would otherwise apply to the sale of assets of the state or impose procedures or restrictions with respect thereto.
Source: SL 2001, ch 27, § 2; SL 2013, ch 28, § 2.
5-12-50. Establishment of special purpose corporation--Limitations--Board membership--Powers of corporation.
The authority may establish by resolution a special purpose corporation which shall be body corporate and politic and instrumentality of, but having a legal existence independent and separate from, the State of South Dakota and the authority. The corporation shall be established for the express limited public purposes set forth in §§ 5-12-48 to 5-12-59, inclusive, and no part of the net earnings of the corporation shall inure to any private individual.
The corporation shall be governed by a board consisting of the members of the authority and two additional persons appointed by the Governor, which two additional members shall be independent from the state. The resolution establishing the corporation shall serve as the charter of the corporation and may be amended from time to time by the authority, but the resolution shall at all times provide that the power and the authority of the corporation shall be subject to the terms, conditions, and limitations of §§ 5-12-48 to 5-12-59, inclusive, and any applicable covenants or agreements of the corporation in any indenture or other agreement relating to any then outstanding bonds. The corporation may enter into contracts regarding any matter connected with any corporate purpose within the objects and purposes of §§ 5-12-48 to 5-12-59, inclusive.
The authority and corporation may delegate by resolution to one or more officers or employees of the authority or corporation such powers and duties as it may deem proper.
The corporation may issue bonds and secure repayment of the bonds with amounts payable out of tobacco settlement revenues or any other property or funds of the corporation. Bonds issued by the corporation shall be accompanied by an opinion of nationally recognized bond counsel substantially to the effect that the bonds are valid and legal obligations of the corporation.
The corporation may pledge as security for any bonds any rights under the master settlement agreement held by the corporation, including the right to receive or collect tobacco settlement revenues, moneys, or other funds deposited with, payable to or held by or on behalf of the corporation, and the proceeds of the foregoing and any proceeds of bonds. Any right of the state to the residual interest in tobacco settlement revenues shall be, in all respects, junior and subordinate to any such pledge if and to the extent so provided by the terms of any instrument or agreement described in 5-12-49 and signed on behalf of the state by the Governor. Any such pledge made by the corporation shall be valid and binding from the time the pledge is made. The property, revenues, moneys, and other funds so pledged and thereafter held or received by or on behalf of the corporation shall immediately be subject to the lien of the pledge without any physical delivery thereof or further act; and, subject only to the provisions of prior pledges or agreements of the corporation, the lien of the pledge shall be valid and binding as against the state and all parties having claims of any kind in tort, contract, or otherwise against the corporation irrespective of whether such parties have notice thereof. No ordinance, resolution, trust agreement, or other instrument by which such pledge is created need be filed or recorded except in the records of the corporation.
In connection with the issuance of bonds or, at any time with respect to bonds, the corporation may enter into arrangements to provide additional security and liquidity for bonds. The arrangements may include, without limitation, bond insurance, letters of credit, and lines of credit by which the corporation may borrow funds to pay or redeem its bonds and purchase or remarketing arrangements for assuring the ability of owners of the bonds to sell or have redeemed their bonds. The corporation may enter into contracts and may agree to pay fees to persons providing the arrangements, including from bond proceeds.
The resolution authorizing the issuance of bonds or the indenture or other agreement approved by the resolution may provide that interest rates may vary from time to time depending upon criteria established by the corporation, which may include, without limitation, a variation in interest rates as may be necessary to cause bonds to be remarketable from time to time at a price equal to their principal amount, and may provide for appointment of a national banking association, bank, trust company, investment banking firm, or other financial institution to serve as a remarketing agent in that connection. The indenture or other agreement with respect to bonds may provide that alternative interest rates or provisions will apply during such times as bonds are held by a person providing a letter of credit or other credit enhancement arrangement for bonds.
In connection with bonds under §§ 5-12-48 to 5-12-59, inclusive, or the investment of proceeds, bonds, or other funds of the corporation, the corporation may enter into contracts that it determines necessary or appropriate to permit it to manage payment or interest rate risk. These contracts may include, but are not limited to, interest rate exchange agreements; contracts providing for payment or receipt of funds based on levels of or changes in interest rates; contracts to exchange cash flows or series of payments; and contracts incorporating interest rate caps, collars, floors, or locks.
The corporation may not file a voluntary petition under or be or become a debtor or bankrupt under the federal bankruptcy code or any other federal or state bankruptcy, insolvency, or moratorium law or statute as may, from time to time, be in effect and neither any public officer nor any organization, entity, or other person shall authorize the corporation to be or become a debtor or bankrupt under the federal bankruptcy code or any other federal or state bankruptcy, insolvency, or moratorium law or statute, as may, from time to time be in effect.
The corporation may not guarantee the debts of another.
The corporation may not be required to file any reports with the state other than those required to be filed with the Legislature by authorities which issue bonds.
Except for debts incurred directly by the corporation, no indebtedness, bonds, or obligation, issued, incurred, or created by the State of South Dakota or any state agency or instrumentality may be or become a lien, charge, or liability against the corporation or the property or funds of the corporation.
Source: SL 2001, ch 27, § 3; SL 2002, ch 31, § 2.
5-12-50.1. Bond transactions to be public records subject to disclosure.
The particulars of any bond transactions made pursuant to §§ 5-12-48.1, 5-12-50, and 5-12-50.1, inclusive, including legal fees and the costs of underwriting the bonds, shall be of public record subject to disclosure pursuant to § 1-27-1.
Source: SL 2002, ch 31, § 3.
5-12-51. Purposes of special purpose corporation.
The purposes of the corporation established by the authority pursuant to §§ 5-12-48 to 5-12-61, inclusive, are:
(1) To purchase, acquire, own, pledge, encumber, or otherwise transfer all right, title, and interest of the state in, to, and under the master settlement agreement, including, without limitation, all right, title, and interest to receive or collect tobacco settlement revenues;
(2) To raise funds through the issuance of bonds or other obligations or evidences of indebtedness or ownership or through the sale, transfer, pledge, encumbrance, securitization, factoring, or other conveyance of the rights described above in subdivision (1) of this section for the purposes of depositing net proceeds of bonds in the education enhancement trust fund and as otherwise described in §§ 5-12-48 to 5-12-61, inclusive;
(3) To serve the Legislature by making reports concerning the foregoing;
(4) To sue and be sued and to prosecute and defend, at law or in equity, in any court having jurisdiction of the subject matter and of the parties;
(5) To have and to use a corporate seal and to alter the same at pleasure;
(6) To maintain an office at such place or places as the authority by resolution may designate;
(7) To receive funds transferred to it by the authority, the state, or others; and
(8) To do all things necessary and convenient to carry out the purposes of this chapter.
The corporation shall also be vested with the same power and authority, and shall be subject to the same limitations and conditions, as are applicable to the authority pursuant to §§ 5-12-1.1, 5-12-4, 5-12-5, 5-12-8.1, 5-12-22, 5-12-24, 5-12-26, 5-12-27, 5-12-27.1, 5-12-27.2, 5-12-27.3, 5-12-27.4, 5-12-27.6, 5-12-28, 5-12-38, 5-12-38.1, and 5-12-40, except such power and authority shall be exercised with respect to and shall be limited to the purposes of the corporation set forth in this section, the final maturity date of any bonds issued, incurred, or created hereunder may not be in excess of forty years for the date of delivery thereof, and the corporation may not engage in any unrelated activities. In addition, the corporation may invest any of its funds in permitted investments.
Source: SL 2001, ch 27, § 4; SL 2013, ch 28, § 3.
5-12-52. Bonds of corporation not a lien, charge or liability against the state--Pledge of education enhancement trust funds prohibited.
No bond of the corporation issued, incurred, or created under §§ 5-12-48 to 5-12-61, inclusive, may be or become a lien, charge, or liability against the State of South Dakota or the authority, nor against the property or funds of the State of South Dakota or the authority within the meaning of the Constitution or statutes of South Dakota. In no event may any of the funds deposited into the education enhancement trust fund be pledged to secure payment of any bonds issued under the authority of §§ 5-12-48 to 5-12-61, inclusive.
Source: SL 2001, ch 27, § 5; SL 2013, ch 28, § 4.
5-12-53. Pledge of non-interference by state to impair terms of bonds--Liability of state on bonds.
The State of South Dakota pledges to and agrees with the holders of bonds issued, incurred, or created under §§ 5-12-48 to 5-12-59, inclusive, that the state will not limit or alter the rights and powers vested in the corporation and the authority by §§ 5-12-48 to 5-12-59, inclusive, so as to impair the terms of any contract made by the corporation or the authority with those holders or in any way impair the rights and remedies of those holders until such bonds, together with interest thereon, interest on any unpaid installments of interest, and all costs and expenses in connection with any action or proceedings by or on behalf of those holders are fully met or discharged. In addition, the state pledges to and agrees with the holders of bonds issued, incurred, or created under §§ 5-12-48 to 5-12-59, inclusive, that the state will not limit or alter the basis on which tobacco settlement revenues that have been sold pursuant to §§ 5-12-48 to 5-12-59, inclusive, are to be paid to the corporation or the authority so as to impair the terms of any such contract. The corporation and authority each may include these pledges and agreements of the state in any contract with the holders of bonds issued, incurred, or created under §§ 5-12-48 to 5-12-59, inclusive.
Neither the State of South Dakota nor the authority is liable on bonds issued, incurred, or created under §§ 5-12-48 to 5-12-59, inclusive, those bonds may not be a debt of the state or the authority, and §§ 5-12-48 to 5-12-59, inclusive, may not be construed as a guarantee by the state or the authority of the debts of the corporation. The bonds shall contain a statement to this effect on the face of the bonds.
Source: SL 2001, ch 27, § 6.
5-12-54. Liability of authority and special purpose corporation.
The authority is not liable for any bond issued, incurred, or created by the corporation under §§ 5-12-48 to 5-12-59, inclusive, or for any act or failure to act of the corporation. The corporation may not be liable for any obligation of the South Dakota Building Authority or for any act or failure to act by the building authority.
Source: SL 2001, ch 27, § 7.
5-12-55. Special purpose corporation treated as public instrumentality of state--Income of authority and corporation not taxed--Obligations of corporation deemed public securities.
The corporation is hereby declared to be performing a public function on behalf of the state and to be a public instrumentality of the state. The income of the authority and the corporation, and all properties at any time owned by the authority and the corporation, are exempt from all taxation in the State of South Dakota. In addition, the corporation is exempt from all filing, reporting, and similar requirements otherwise applicable to nonprofit and other corporations.
For purposes of chapter 47-31B, bonds, notes, certificates, or other obligations issued, incurred or created by the corporation under §§ 5-12-48 to 5-12-59, inclusive, are deemed to be securities issued by a public instrumentality of the State of South Dakota.
Source: SL 2001, ch 27, § 8; SL 2004, ch 278, § 56.
5-12-56. Employees of special purpose corporation.
The corporation may employ attorneys, accountants, tobacco industry consultants, and financial experts, managers, and such other employees and agents as may be necessary in its judgment and to fix their compensation.
Source: SL 2001, ch 27, § 9.
5-12-59. State pledge to honor agreements of authority or corporation with regard to certain federal income tax exclusions.
If in order to obtain or preserve any exclusion of interest on bonds from gross income of the holders thereof for purposes of federal income taxation, the corporation or authority enters into any agreement or covenant with the holders of bonds (or the trustee or other fiduciary acting on behalf of or for the benefit of holders of bonds) that imposes restrictions or conditions on the investment, use, expenditure, or other application of the proceeds of bonds issued, incurred, or created under §§ 5-12-48 to 5-12-61, inclusive, including any investment earnings thereon (whether while on deposit in the education enhancement trust fund or otherwise), then the state and each agency, authority, or other body politic of the state or acting on behalf of the state, shall observe and fully honor each such agreement, covenant, or other restriction or condition with respect to investment, use, expenditure, or application thereof. The State of South Dakota pledges to and agrees with the holders of bonds issued, incurred, or created under §§ 5-12-48 to 5-12-61, inclusive, that the state will not invest, use, expend, or otherwise apply such proceeds of bonds and any other amounts so as to impair the terms of any such agreement or covenant made by the corporation or authority with any such holders (or trustee or other fiduciary) or in any way impair the exemption or exclusion of interest on any such bonds from federal income taxation. The corporation and authority each may include these pledges and agreements of the state in any contract with the holders of bonds issued, incurred, or created under §§ 5-12-48 to 5-12-61, inclusive.
Source: SL 2001, ch 27, § 12; SL 2013, ch 28, § 7.
5-12-61. Authority may contract to manage payment or interest rate risk for bonds.
The authority may enter into any contract that the authority determines necessary or appropriate to manage payment or interest rate risk for bonds issued pursuant to this chapter, the investment of proceeds, or other funds of the authority. The contracts may include: interest rate exchange agreements; contracts providing for payment or receipt of funds based on levels of or changes in interest rates; contracts to exchange cash flows or series of payments; or contracts incorporating interest rate caps, collars, floors, or locks.
Source: SL 2003, ch 10, § 4.
CHAPTER 5-14
PUBLIC BUILDINGS AND IMPROVEMENTS
5-14-1 Classification of capital improvements.
5-14-2 Supervision by Bureau of Human Resources and Administration of capital improvement projects--Payment of appropriated funds.
5-14-3 Preparation of plans and specifications for capital improvements--State building committees--Approval by governing board or commission.
5-14-4 Bureau review and approval of new construction plans and costs.
5-14-5 Plans and specifications for legislative review--Designation of architect or engineer.
5-14-6 Planning and supervisory expenses paid from building funds.
5-14-7 5-14-7. Repealed by SL 2011, ch 2, § 36.
5-14-8 Acceptance and expenditure of contributions to capital improvements.
5-14-8.1 Acceptance and expenditure of contributions for works of art in state buildings.
5-14-9 Plans, specifications, bids, contracts, and cost records kept by Bureau of Human Resources and Administration.
5-14-10 Clear title to land required before erection of buildings--Certification by attorney general.
5-14-11 State housing facilities to be fire resistant--Exceptions--Promulgation of rules.
5-14-12 Public buildings to accommodate persons with disabilities.
5-14-13 Standards and specifications for construction to accommodate persons with disabilities.
5-14-13.1 International wheelchair symbol to be displayed.
5-14-14 Enforcement of requirements for persons with disabilities.
5-14-15 5-14-15. Repealed by SL 1992, ch 46, § 3.
5-14-16 5-14-16. Repealed by SL 1992, ch 46, § 4.
5-14-17 Electric generating plants--Federal contracts for purchase of energy--Discontinuation of generation and maintenance of standby plants.
5-14-18 Willful injury to public building or improvement--Penalty.
5-14-19 Payment of special assessments for improvement of state property.
5-14-20 5-14-20. Repealed by SL 2017, ch 44, § 1.
5-14-21 Warrants for special assessments--Vouchers.
5-14-22 Sale or lease of real property for public purpose or industrial development--Authorization of lease--Legislature to approve sales.
5-14-23 Local industrial development corporation defined--Composition--Voting control--Primary objective.
5-14-24 5-14-24. Repealed by SL 2006, ch 2, § 15.
5-14-25 5-14-25 to 5-14-29. Repealed by SL 2007, ch 32, §§ 1 to 5.
5-14-30 State-wide maintenance and repair fund--Priority of projects.
5-14-31 Acceptable sources of funds.
5-14-32 Definitions.
5-14-33 State buildings--High-performance green building standard.
5-14-34 Waiver of requirements.
5-14-35 Initial determination of Bureau of Human Resources and Administration.
5-14-36 Certification.
5-14-37 Report to the Legislature.
5-14-38 Rules.
5-14-39 Property and casualty captive insurance company fund established.
5-14-40 Liability captive insurance company fund established.
5-14-1. Classification of capital improvements.
Capital improvements shall be classified as follows:
(1) "New construction," expenditures authorized for new buildings or new facilities and includes the cost of architectural and engineering services, site preparation, constructing, furnishing, equipping such buildings and facilities for use, including heating, plumbing, ventilation, water, sewer, and electrical facilities with necessary connections to existing systems, the construction of sidewalks, and landscaping the grounds. No expenditures may be made for land acquisition costs from appropriations provided for new construction. This category does not include roads and highways constructed under the supervision of the Department of Transportation nor minor park improvements and dams constructed under the supervision of the Department of Game, Fish and Parks.
(2) "Land acquisition," expenditures authorized for the purchase of land and improvements affixed to the land including lease-purchase agreements of existing facilities. It also includes sewer, street, and curb and gutter improvements that may start at the time of purchase of the land or later result as improvements to the land so acquired.
Source: SL 1965, ch 255, § 3; SL 1967, ch 262, § 2; SL 1995, ch 73, § 2.
5-14-2. Supervision by Bureau of Human Resources and Administration of capital improvement projects--Payment of appropriated funds.
The construction of all capital improvements projects as defined in § 5-14-1 of state agencies, boards, commissions, and institutions are under the general charge and supervision of the Bureau of Human Resources and Administration as provided in this chapter. Funds appropriated shall be paid on warrants drawn by the state auditor on vouchers duly approved by the Bureau of Human Resources and Administration and may also be approved by the authorized representative of the agency, board, commission, or institution to which the project appropriation is made.
Source: SL 1965, ch 255, § 1; SL 1967, ch 261; SL 1967, ch 262, § 1; SL 1992, ch 46, § 1; SL 2011, ch 2, § 34; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-14-3. Preparation of plans and specifications for capital improvements--State building committees--Approval by governing board or commission.
The Bureau of Human Resources and Administration, under the direction of the committee as provided by this section, shall have general charge and supervision of the design and construction of all state buildings, power and heating plants, heating, cooling, and air-conditioning systems, water supply, fire protection, sewerage and sewage disposal systems, electrical generation and distribution, and all major repairs, rebuilding or alterations thereof. A state building committee is required on all projects of five million dollars or more. The committee shall consist of a member of the board or commission governing the institution or department concerned, the executive director or like officer of the respective board or commission, a representative of the institution or department appointed by the governing board or commission of that institution or department, and a representative of the Bureau of Human Resources and Administration. If the project is funded pursuant to chapter 5-12, the South Dakota Building Authority may appoint a representative. The Bureau of Human Resources and Administration, under the direction of the committee, shall prepare, or cause to be prepared, the preliminary plans, specifications, and other descriptive material or reports for all proposed new construction, capital improvement, or major repairs and remodeling. After the preliminary plans have been approved by the committee, the plans shall be presented to the respective board or commission governing the institution or department concerned. Upon proper authorization of the board or commission, the Bureau of Human Resources and Administration, under the direction of the committee, shall prepare, or cause to be prepared, all final plans, specifications, advertisements, notices, and instructions to bidders, proposal forms, and contract forms, and all work incidental to securing bids and contracts for same, according to the direction of the board or commission governing the institution or department concerned. The Bureau of Human Resources and Administration shall supervise the construction, including inspection of construction and critical point inspections on projects of one million five hundred thousand dollars or more, repair, rebuilding, or alterations.
Source: SL 1913, ch 329, § 1; RC 1919, § 8208; SL 1931, ch 240, § 1; SDC 1939, § 55.1814; SL 1955, ch 240, § 1; SL 1963, ch 306; SL 1969, ch 209, § 3; SL 1992, ch 46, § 2; SL 1994, ch 50, § 12; SL 2019, ch 47, § 1; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-14-4. Bureau review and approval of new construction plans and costs.
The Bureau of Human Resources and Administration shall review and approve all agreements with any architect or consulting engineer for the preparation of new construction plans and cost estimates.
Source: SL 1965, ch 255, § 4; SL 1967, ch 262, § 3; SL 1994, ch 51, § 1; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-14-5. Plans and specifications for legislative review--Designation of architect or engineer.
The Bureau of Human Resources and Administration, under the direction of the State Building Committee, shall, at the request of any state board that expects to appear before the Legislature for the purpose of asking for any appropriation for state buildings and improvements, prepare such plans and specifications and have the plans and specifications ready before the Legislature meets for their information. If the services of a licensed architect or engineer are deemed to be necessary for this purpose, the building committee as provided in § 5-14-3 shall designate such architect or engineer.
Source: SL 1913, ch 329, § 3; RC 1919, § 8210; SDC 1939, § 55.1815; SL 1955, ch 240, § 2; SL 1969, ch 209, § 4; SL 2011, ch 2, § 35; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-14-6. Planning and supervisory expenses paid from building funds.
Any board, agency, or other body authorized by law to erect any state building or other improvement provided for in §§ 5-14-3 and 5-14-5, shall pay out of funds appropriated or available for the purpose all expenses incurred for plans, specifications, and supervision of construction, including the actual and necessary expenses of the Bureau of Human Resources and Administration.
Source: SL 1913, ch 329, § 4; RC 1919, § 8211; SL 1931, ch 240, § 2; SDC 1939, § 55.1816; SL 1955, ch 240, § 3; SL 1969, ch 209, § 5; SL 1970, ch 40, § 1; SL 1992, ch 47, § 1; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-14-8. Acceptance and expenditure of contributions to capital improvements.
The various agencies, boards, commissions, and institutions may accept and expend in addition to the amounts provided for new construction at any of the institutions under their jurisdiction, any funds which may be obtained from any gift or contribution from any source for that purpose.
Source: SL 1965, ch 255, § 2; SL 2011, ch 2, § 37.
5-14-8.1. Acceptance and expenditure of contributions for works of art in state buildings.
The South Dakota State Fine Arts Council, the State Building Committee provided for in § 5-14-3, and the Bureau of Human Resources and Administration, may accept and expend for the purpose of this chapter, any funds which it may obtain from federal sources, gifts, contributions, or any other source for the acquisition and installation of works of art in state buildings in which the works of art shall be an integral part of the building, attached to the building, or capable of display in other state buildings.
Source: SL 1979, ch 34, § 1; SL 2011, ch 2, § 38; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-14-9. Plans, specifications, bids, contracts, and cost records kept by Bureau of Human Resources and Administration.
The Bureau of Human Resources and Administration shall keep the original or a copy of the plans and specifications of all state buildings, of all bids submitted, and of all contracts let for their erection. The bureau shall prepare and keep itemized statements of the cost of construction of all such buildings.
Source: SL 1913, ch 329, § 2; RC 1919, § 8209; SDC 1939, § 55.1814; SL 1955, ch 240, § 1; SL 1963, ch 306; SL 2011, ch 2, § 39; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-14-10. Clear title to land required before erection of buildings--Certification by attorney general.
No money appropriated by the state may be expended for the erection of any building upon land not previously owned by the state before title thereto has conveyed to the state by a deed duly executed and acknowledged, granting the title in fee, clear of all encumbrances, without any reversionary clause or condition whatever, and the attorney general has certified that the title acquired by the state conforms to the requirements of this section.
Source: SL 1905, ch 97; RC 1919, § 5066; SDC 1939, § 55.0201; SL 1945, ch 295, § 1; SL 2011, ch 2, § 40.
5-14-11. State housing facilities to be fire resistant--Exceptions--Promulgation of rules.
No state building may be designed or constructed for the permanent housing of human beings that is not fire resistant. This section does not apply to the use of buildings constructed or renovated prior to July 1, 2007, or to one-family or two-family dwellings used for employees' housing at institutions under the control of the executive branch or the Board of Regents.
A fire resistant building within the meaning of this section is a building with appropriate fire detection devices as approved by the Department of Public Safety and constructed in compliance with the provisions of the International Building Code utilizing fire resistive construction throughout and equipped with an automatic fire-extinguishing system. The Bureau of Human Resources and Administration shall promulgate rules pursuant to chapter 1-26 to establish the edition of the International Building Code which would be applicable to this section. Nothing in this section prevents the application of more restrictive conditions by individual agencies. The Bureau of Human Resources and Administration shall identify those buildings which are subject to this section and make all determinations of compliance with these requirements.
Source: SDC 1939, §§ 55.1817, 55.9911; SL 1955, ch 241; SL 1972, ch 31; SL 1980, ch 24, § 68; SL 1989, ch 20, § 63; SL 1989, ch 238, § 5; SL 1993, ch 54, § 1; SL 2003, ch 272, §§ 20, 121; SL 2007, ch 31, § 1; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-14-12. Public buildings to accommodate persons with disabilities.
The standards and specifications set forth in § 5-14-13 apply to all buildings and facilities used by the public which are constructed in whole or in part by the use of state, county, or municipal funds, or the funds of any political subdivision of the state. All such buildings and facilities constructed or remodeled after January 26, 1992, shall conform to these standards.
Source: SL 1965, ch 312, § 1; SL 1975, ch 53, § 1; SL 1994, ch 52, § 1; SL 2011, ch 2, § 41.
5-14-13. Standards and specifications for construction to accommodate persons with disabilities.
The minimum standards required by § 5-14-12 are set forth in the Americans With Disabilities Act Accessibility Guidelines for Buildings and Facilities published by the U.S. Architectural and Transportation Barriers Compliance Board, August 1992.
Source: SL 1965, ch 312, § 2; SL 1986, ch 51; SL 1988, ch 53; SL 1994, ch 52, § 2.
5-14-13.1. International wheelchair symbol to be displayed.
All public buildings and facilities providing facilities for the wheelchair user, including entrance and exit facilities, shall display at all entrances the internationally recognized symbol for wheelchair users.
Source: SL 1971, ch 30; SL 2011, ch 2, § 42.
5-14-14. Enforcement of requirements for persons with disabilities.
The administrator in charge of, and authorized to contract for, new construction, remodeling, alteration, or addition on behalf of the political subdivision involved shall enforce the provisions of §§ 5-14-12 and 5-14-13.
Source: SL 1965, ch 312, § 3; SL 1975, ch 53, § 2; SL 2011, ch 2, § 43.
5-14-17. Electric generating plants--Federal contracts for purchase of energy--Discontinuation of generation and maintenance of standby plants.
Each department or agency of state government operating and maintaining an electrical energy producing plant may enter into a contract with the United States of America for the purchase of electrical energy. The contract may include stipulations that the generation of electrical energy may be discontinued. The department or agency may maintain such a plant in a serviceable operating condition for standby service for the generation of electrical energy if required so to do by the United States.
Source: SL 1951, ch 284; SDC Supp 1960, § 55.2016; SL 2011, ch 2, § 44.
5-14-18. Willful injury to public building or improvement--Penalty.
Any person who intentionally burns, destroys, or injures any public building or improvement in this state is punishable as provided in § 22-34-1.
Source: PenC 1877, § 513; CL 1887, § 6714; RPenC 1903, § 535; RC 1919, § 3829; SDC 1939, § 13.1309; SL 1980, ch 24, § 69; SL 2011, ch 2, § 45.
5-14-19. Payment of special assessments for improvement of state property.
The state auditor shall, upon approval of the commissioner of human resources and administration, pay claims for special assessments or interest and penalties thereon for improvements on property of the state, its agencies, institutions, or instrumentalities.
Source: SL 1970, ch 34, § 1; SL 1981, ch 36, § 2; SL 1981, ch 37, § 1; SL 1985, ch 33, § 20; SL 2024, ch 1 (Ex. Ord. 24-1), §§ 13, 34, eff. Apr. 8, 2024.
5-14-21. Warrants for special assessments--Vouchers.
Payments for special assessments provided for in § 5-14-19 shall be disbursed by warrant, drawn by the state auditor upon duly itemized vouchers, approved by an authorized agent of the department whose property is affected.
Source: SL 1970, ch 34, § 2.
5-14-22. Sale or lease of real property for public purpose or industrial development--Authorization of lease--Legislature to approve sales.
The state may lease or sell on a negotiated basis and convey any of its real property to a municipality or county, or to a nonprofit local industrial development corporation as defined by § 5-14-23 and located therein, to be used by such grantee for an authorized public purpose or industrial development purpose as enumerated in § 9-54-1. The lease shall be authorized on the terms and in the manner provided by the Legislature. Each sale is subject to approval by an act of the Legislature.
Source: SL 1976, ch 63, § 1; SL 1977, ch 48, § 1; SL 2011, ch 2, § 46.
5-14-23. Local industrial development corporation defined--Composition--Voting control--Primary objective.
For the purposes of § 5-14-22, the term, local industrial development corporation, is an enterprise incorporated under the laws of the State of South Dakota, formed for the purpose of furthering the economic development of a community and its environs, and with authority to promote and assist in the growth and development of small business concerns in the areas covered by its operation. The corporation shall be organized as a nonprofit enterprise and shall be composed of no fewer than twenty-five members. A local industrial development corporation shall be principally composed of and controlled by persons residing or doing business in the locality. Such persons shall ordinarily constitute not less than seventy-five percent of the voting control of the local development corporation. No member of the development corporation may own in excess of twenty-five percent of the voting control in the development corporation if that member or that member's affiliated interests have direct pecuniary interest in a project involving an application under § 5-14-22. The primary objective of the local industrial development corporation is to benefit the community as measured by increased employment, payroll, business volume, and corresponding factors.
Source: SL 1976, ch 63, § 2; SL 1996, ch 40, § 1; SL 2011, ch 2, § 47.
5-14-30. State-wide maintenance and repair fund--Priority of projects.
There is hereby established within the Bureau of Human Resources and Administration the state-wide maintenance and repair fund. The bureau shall administer the fund and maintain it separately in order to conduct maintenance and repair on state-owned buildings pursuant to this chapter. The projects to receive funding shall be selected from a state-wide maintenance and repair priority list developed by the bureau. The Board of Regents shall annually establish the priority for maintenance and repair projects involving academic and revenue project buildings under its control. Any project of the Board of Regents involving an academic building pursuant to § 13-51-1 may be financed from the education facilities fund established under § 13-51-2 according to the order of priority determined by the board. The Bureau of Human Resources and Administration shall place on the prioritized list of projects to be financed through the state-wide maintenance and repair fund any project involving an academic building that has not been financed through § 13-51-2. The Board of Regents shall have charge of the maintenance and repair of revenue bond project buildings as provided in chapter 13-51A. However, in order to be eligible to receive funding, in whole or in part, from the state-wide maintenance and repair fund, each agency, board, bureau, or department of state government, including the Board of Regents, shall submit to the Bureau of Human Resources and Administration a complete list of all proposed maintenance and repair projects notwithstanding other available funding sources for those projects. After the bureau determines which projects contained in the priority list are to receive funding, those projects that are not to be funded through the state-wide maintenance and repair fund may be financed by other funding sources. The priority list may be reprioritized if an emergency arises and a written determination made by the bureau of the basis for the emergency is included with the state-wide maintenance and repair priority list.
Source: SL 1994, ch 58, § 3; SL 2011, ch 2, § 48; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-14-31. Acceptable sources of funds.
The Bureau of Human Resources and Administration may accept and expend for the purpose of § 5-14-17 any funds obtained from federal sources, gifts, contributions, or any other source if such acceptance and expenditure is approved in accordance with § 4-8B-10.
Source: SL 1994, ch 58, § 4; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-14-32. Definitions.
Terms used in this section and §§ 5-14-33 to 5-14-38, inclusive, mean:
(1) "High-performance green building standard," a building that is designed and constructed in a manner that achieves at least:
(a) A certified rating under the United States Green Building Council's Leadership in Energy and Environmental Design rating system in effect as of November 18, 2013;
(b) A two globe rating under the Green Building Initiative's Green Globes rating system as of July 31, 2013; or
(c) A comparable numeric rating under a sustainable building certification program recognized by the American National Standards Institute as an accredited standards developer;
(2) "New construction," any new building constructed by any state agency, department, institution, or the Board of Regents, which:
(a) Has a cost of at least one million dollars or contains at least ten thousand square feet of space; and
(b) Has heating, ventilation, or air conditioning.
Source: SL 2008, ch 30, § 1; SL 2010, ch 29, § 1; SL 2015, ch 50, § 1; SL 2021, ch 31, § 1.
5-14-33. State buildings--High-performance green building standard.
New construction shall, in good faith, be designed with the intention of meeting or exceeding the high-performance green building standard that was in effect when the construction was registered with the rating system. Before construction begins, the Office of the State Engineer, architect, and building owner shall identify, in good faith, all components of the new construction that are used to satisfy the requirements of this section.
Source: SL 2008, ch 30, § 2; SL 2015, ch 50, § 2; SL 2021, ch 31, § 2.
5-14-34. Waiver of requirements.
A waiver of the requirements of § 5-14-33 may be granted by the Office of the State Engineer if:
(1) The building will have minimal human occupancy;
(2) The increased costs of achieving a high-performance green building standard cannot be recouped from decreased operational costs within fifteen years; or
(3) The Bureau of Human Resources and Administration determines that extenuating circumstances exist to make impractical high-performance green building standard certification.
Source: SL 2008, ch 30, § 3; SL 2021, ch 31, § 3; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-14-35. Initial determination of Bureau of Human Resources and Administration.
No new construction may proceed until the Bureau of Human Resources and Administration has determined that the construction is satisfactorily designed to meet the requirements of § 5-14-33.
Source: SL 2008, ch 30, § 4; SL 2021, ch 31, § 4; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-14-36. Certification.
Upon completion of any new construction, the Bureau of Human Resources and Administration shall certify that the new construction met the requirements of § 5-14-33.
Source: SL 2008, ch 30, § 5; SL 2021, ch 31, § 5; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-14-37. Report to the Legislature.
The Bureau of Human Resources and Administration shall annually report to the Legislature a listing of any new construction that was granted a waiver or that failed to meet the requirements of § 5-14-33.
Source: SL 2008, ch 30, § 6; SL 2021, ch 31, § 6; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-14-38. Rules.
The Bureau of Human Resources and Administration shall promulgate rules, in accordance with chapter 1-26, to establish the method for calculating the initial costs and the decreased operational costs related to achieving high-performance green building standards.
Source: SL 2008, ch 30, § 7; SL 2021, ch 31, § 7; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-14-39. Property and casualty captive insurance company fund established.
There is hereby established in the state treasury the property and casualty captive insurance company fund. The Bureau of Human Resources and Administration may enter into an agreement with a captive insurance company for the management of the company's funds. Money in this fund may be used to pay for property and casualty losses for state owned property as well as administrative and reinsurance costs for this fund. Interest earned on money in the fund shall be deposited into the fund. Unexpended money and any interest that may be credited to the fund shall remain in the fund. Any money in the property and casualty captive insurance company fund is continuously appropriated. Any money deposited into and distributed from the fund shall be set forth in an informational budget as described in § 4-7-7.2.
Source: SL 2015, ch 44, § 4, eff. Mar. 13, 2015; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-14-40. Liability captive insurance company fund established.
There is hereby established in the state treasury the liability captive insurance company fund. The Bureau of Human Resources and Administration may enter into an agreement with a captive insurance company for the management of the company's funds. Money in this fund may be used to pay for liability coverage as well as administrative costs for this fund. Interest earned on money in the fund shall be deposited into the fund. Unexpended money and any interest that may be credited to the fund shall remain in the fund. Any money in the liability captive insurance company fund is continuously appropriated. Any money deposited into and distributed from the fund shall be set forth in an informational budget as described in § 4-7-7.2.
Source: SL 2015, ch 46, § 4, eff. Mar. 13, 2015; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
CHAPTER 5-15
STATE CAPITOL AND GROUNDS
5-15-1 Capitol Complex Restoration and Beautification Commission--Duty to enlarge and beautify complex.
5-15-1.1 Direction and supervision of commission by Bureau of Human Resources and Administration--Independent functions retained.
5-15-1.2 Definition of terms.
5-15-2 Commission members--Appointment and terms.
5-15-3 Oath and bond of commission members.
5-15-4 Meetings of commission--Chair and secretary--Reports to Governor and Legislature.
5-15-5 Compensation and expenses of commission members.
5-15-6 Employment of personnel--Supplies and equipment.
5-15-7 Plans for enlargement, restoration, and beautification of complex.
5-15-8 Development of areas adjacent to capitol complex--Long-range plan.
5-15-9 Publications by commission--Maps, surveys, and studies.
5-15-10 Acceptance and use of contributions.
5-15-11 Plats and surveys of capitol complex--Opening and vacating streets and alleys--Utility facilities.
5-15-12 Acquisition and management of property for enlarged complex.
5-15-13 Donation of property by city of Pierre.
5-15-14 Hilger's Gulch condemnation validated.
5-15-15 Board to determine location of any new building in capitol complex.
5-15-16 Commission power to execute contracts and instruments.
5-15-17 Lease and management of property acquired by commission.
5-15-18 Sale of excess property by commission--Advertising and notice--Bids and offers.
5-15-19 Sale of property to public agencies--Advertisement not required--Approval by Board of Finance.
5-15-20 Destruction and disposal of buildings.
5-15-21 5-15-21. Repealed by SL 2006, ch 2, § 18.
5-15-22 5-15-22. Repealed by SL 1997, ch 38, § 2.
5-15-23 Promulgation of rules for complex restoration and beautification.
5-15-24 Governor's Grove.
5-15-25 Supervision of improvements and extensions of capitol grounds and buildings.
5-15-25.1 5-15-25.1 to 5-15-25.3. Repealed by SL 2011, ch 2, §§ 72 to 74.
5-15-26 Maintenance and protection of buildings and grounds--Employment of personnel.
5-15-27 Procurement of office space outside capitol building.
5-15-28 Working capital account for maintenance of buildings and grounds.
5-15-29 Reimbursement by agencies of depreciation and maintenance costs.
5-15-29.1 Building depreciation fund--Expenditures.
5-15-29.2 Public buildings fund--Deposit of proceeds from sale or lease of public lands.
5-15-30 Expenditures from maintenance working capital account.
5-15-31 5-15-31 to 5-15-33. Repealed by SL 2011, ch 2, §§ 76 to 78.
5-15-34 Promulgation of rules for conduct in capitol complex and grounds.
5-15-35 Violation of rule as petty offense.
5-15-36 Policy-making and oversight duties of commission.
5-15-36.1 Renovation plans--Commission approval.
5-15-37 5-15-37 to 5-15-41. Repealed by SL 1980, ch 48, § 13.
5-15-42 5-15-42. Repealed by SL 1982, ch 16, § 13.
5-15-43 5-15-43. Repealed by SL 1980, ch 48, § 15.
5-15-44 Historic areas of capitol building--Protection and preservation--Restoration projects.
5-15-45 Alteration or covering of historic area prohibited--Public access--Exceptions.
5-15-46 Historic area traditionally open to the public.
5-15-47 Historic area defined.
5-15-48 Control of areas traditionally reserved to Governor, Legislature, and Supreme Court.
5-15-49 Repealed
5-15-50 Bust of Peter Norbeck.
5-15-51 Statue of General William Henry Harrison Beadle.
5-15-52 Official tribal flag--Capitol building display.
5-15-53 POW/MIA flag to be displayed.
5-15-1. Capitol Complex Restoration and Beautification Commission--Duty to enlarge and beautify complex.
The State of South Dakota declares that it is necessary that the capitol complex in the city of Pierre be enlarged and beautified. The South Dakota Capitol Complex Restoration and Beautification Commission shall accomplish that purpose in the manner provided by this chapter.
Source: SL 1955, ch 300, § 1 as added by SL 1957, ch 340, § 1; SDC Supp 1960, § 55.02A01; SL 1961, ch 316, §§ 1, 8; SL 1980, ch 48, § 1; SL 2011, ch 2, § 49.
5-15-1.1. Direction and supervision of commission by Bureau of Human Resources and Administration--Independent functions retained.
The Capitol Complex Restoration and Beautification Commission shall be administered under the direction and supervision of the Bureau of Human Resources and Administration and the commissioner thereof. The commission shall retain the quasi-judicial, quasi-legislative, advisory, other nonadministrative and special budgetary functions, as defined in § 1-32-1, otherwise vested in it and shall exercise those functions independently of the commissioner of human resources and administration.
Source: SL 1974, ch 3, § 5 (b); SL 1980, ch 48, § 2; SL 2011, ch 2, § 50; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-15-1.2. Definition of terms.
Terms as used in this chapter mean:
(1) "Commission," the South Dakota Capitol Complex Restoration and Beautification Commission;
(2) "Capitol complex," all state capitol buildings and capitol grounds within the capitol complex.
Source: SL 1980, ch 48, §§ 1, 14.
5-15-2. Commission members--Appointment and terms.
The commission consists of the mayor of Pierre or the mayor's designee, one member of the House of Representatives appointed by the speaker of the House of Representatives, one member of the Senate appointed by the president pro tempore of the Senate, and seven members appointed by the Governor. The member appointed by the speaker of the House of Representatives and the member appointed by the president pro tempore of the Senate are appointed for a term of two years. The members appointed by the Governor are appointed for a term of four years and may not all be of the same political party. Any member appointed to fill a vacancy arising from other than the natural expiration of a term shall serve for only the unexpired portion of the term.
Source: SL 1955, ch 300, § 1; SL 1957, ch 340, § 1; SDC Supp 1960, § 55.02A01; SL 1961, ch 316, § 1 (a); SL 1980, ch 48, §§ 3, 4; SL 1982, ch 55, § 3; SL 1989, ch 52; SL 2011, ch 2, § 51; SL 2024, ch 23, § 1.
5-15-3. Oath and bond of commission members.
Each member of the commission shall, within ten days after appointment, qualify by taking the oath of office and giving bond to the state, with corporate surety, in the penal sum of twenty-five hundred dollars, the cost to be paid by the state.
Source: SL 1961, ch 316, § 1 (b); SL 2011, ch 2, § 52.
5-15-4. Meetings of commission--Chair and secretary--Reports to Governor and Legislature.
The commission shall meet at least twice each year and at such additional times as may be necessary. All meetings shall be held at the state capitol, and a majority of its members constitutes a quorum. The commission shall choose a chair, and one of its members as secretary, who shall keep minutes of its meetings. The commission shall make reports to the Governor on the progress of its work, and to the Legislature.
Source: SL 1955, ch 300, § 3; SL 1957, ch 340, § 2; SDC Supp 1960, § 55.02A03; SL 1961, ch 316, § 1 (a); SL 2011, ch 2, § 53.
5-15-5. Compensation and expenses of commission members.
The per diem and expenses of commission members shall be paid by warrant of the state auditor by funds appropriated therefor, on vouchers approved by the Bureau of Human Resources and Administration.
Source: SL 1955, ch 300, § 4; SDC Supp 1960, § 55.02A04; SL 2011, ch 2, § 54; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-15-6. Employment of personnel--Supplies and equipment.
The Bureau of Human Resources and Administration shall employ such clerical and other help for the commission as in the bureau's discretion seems necessary. The bureau may employ such assistance and provide such supplies and equipment as may be necessary to properly carry on the work of the commission.
Source: SL 1955, ch 300, § 5; SDC Supp 1960, § 55.02A05; SL 1961, ch 316, § 3; SL 2011, ch 2, § 55; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-15-7. Plans for enlargement, restoration, and beautification of complex.
The commission shall make all necessary plans for the enlargement, restoration, and beautification of the capitol complex or additions thereto, including uniform plans and specifications for its development.
Source: SL 1961, ch 316, § 2 (a); SL 1980, ch 48, § 5; SL 2011, ch 2, § 56.
5-15-8. Development of areas adjacent to capitol complex--Long-range plan.
The commission shall make recommendations for the development of areas immediately adjacent to the state capitol complex and acquaint the people of South Dakota with the need and purpose of a comprehensive long-range plan for capitol complex of sufficient and proper size to serve the future needs of the state and to secure the proper growth and expansion of the city of Pierre. The zone shall be designated the capitol area preservation zone and shall be zoned primarily for residential purposes and for governmental purposes.
Source: SL 1955, ch 300, § 2; SDC Supp 1960, § 55.02A02; SL 1980, ch 48, § 6; SL 1982, ch 55, § 1; SL 2011, ch 2, § 57.
5-15-9. Publications by commission--Maps, surveys, and studies.
The commission may print and distribute such pamphlets and leaflets and information as is proper and necessary to further and advance the work, objects, and aims of the commission, and acquaint South Dakota citizens with the commission. The Bureau of Human Resources and Administration shall supply the pamphlets and leaflets for the commission. The commission may have maps, diagrams, drawings, sketches, representations, preliminary surveys, and studies made in conjunction with the commission's work, and do all the necessary things to effectuate the purposes and intent of §§ 5-15-1 to 5-15-23, inclusive.
Source: SL 1955, ch 300, § 5; SDC Supp 1960, § 55.02A05; SL 2011, ch 2, § 58; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-15-10. Acceptance and use of contributions.
The commission may accept and receive gifts of money and contributions and donations of real and personal property from any source, including the city of Pierre, South Dakota, a municipal corporation, and the United States of America, and to use the same for the purposes of §§ 5-15-1 to 5-15-23, inclusive. The commission may deposit such moneys to the credit of the commission, and carry on a campaign for public contribution of such funds, and expend moneys necessary therefor.
Source: SL 1961, ch 316, § 2 (d); SL 2011, ch 2, § 59.
5-15-11. Plats and surveys of capitol complex--Opening and vacating streets and alleys--Utility facilities.
The commission may make all necessary surveys in connection with its work, plat and replat the area of the capitol complex acquired by the commission, or any part thereof, and open and dedicate streets to the use of the public in such area, granting easements therein and use thereof to the city of Pierre, South Dakota, and to the public, for sewer, water, and electricity, and other facilities. The commission may vacate any streets or alleys in the manner provided by law in the areas acquired by the commission or bordering on or adjacent thereto. The commission may make agreements with the city for replacement of its facilities in any vacated streets within the area and grant easements for erection and maintenance of other necessary facilities and utilities.
Source: SL 1961, ch 316, § 2 (h); SL 1963, ch 321, § 2; SL 1980, ch 48, § 7; SL 2011, ch 2, § 60.
5-15-12. Acquisition and management of property for enlarged complex.
The commission may acquire by gift or the exercise of the power of eminent domain in the manner provided by law, real property necessary for the state capitol complex enlarged as provided by the plans adopted by the commission, lease or manage any such property, and sell excess property of the commission.
Source: SL 1961, ch 316, § 2 (b); SL 1980, ch 48, § 8; SL 2011, ch 2, § 61.
5-15-13. Donation of property by city of Pierre.
The city of Pierre may convey, without compensation therefor, to the state any property owned by the city within the boundaries of the capitol complex as enlarged pursuant to the plan adopted, and area determined, by the commission.
Source: SL 1961, ch 316, § 6; SL 1980, ch 48, § 9; SL 2011, ch 2, § 62.
5-15-14. Hilger's Gulch condemnation validated.
The acts of the commission in its exercise of the power of eminent domain on behalf of the state and in the selection of the lands acquired in the action of condemnation heretofore brought by the commission in the circuit court for Hughes County, South Dakota, to acquire unimproved land in the area known as Hilger's Gulch in the city of Pierre adjacent to the existing capitol grounds, are hereby confirmed as if heretofore expressly conferred and the action is cured, validated, and legalized from its inception.
Source: SL 1961, ch 316, § 7; SL 2011, ch 2, § 63.
5-15-15. Board to determine location of any new building in capitol complex.
The location of any building to be erected in the capitol complex shall be determined by the majority vote of a board consisting of the Governor, chair of the commission, and the executive head or officer of any of the branches of state government, or the chair, commissioner, or head of any department, board, commission or agency thereof, for which a new building is authorized to be erected.
Source: SL 1963, ch 321, § 3; SL 1980, ch 48, § 10; SL 2011, ch 2, § 64.
5-15-16. Commission power to execute contracts and instruments.
The commission may make and execute all contracts and other instruments which may be required in connection with the enlargement, renovation, and beautification of the state capitol grounds and other duties imposed upon the commission by §§ 5-15-1 to 5-15-23, inclusive.
Source: SL 1961, ch 316, § 2 (c); SL 1980, ch 48, § 11; SL 2011, ch 2, § 65.
5-15-17. Lease and management of property acquired by commission.
The commission may lease, manage, control, and maintain any of the property heretofore or hereafter acquired by it, and to execute lease, or rental agreements therefor as the commission deems advisable. No lease agreement may exceed a term of two years. The lease agreement shall be executed by the chair and secretary.
Source: SL 1961, ch 316, § 2 (g); SL 2011, ch 2, § 66.
5-15-18. Sale of excess property by commission--Advertising and notice--Bids and offers.
The commission may sell unneeded or excess property of the commission other than real property and sever any buildings or structures from the land. The sale of any property by the commission shall be at public auction or upon sealed bids, to be held in Hughes County, South Dakota, to the highest bidder for cash. Notice of sale, containing terms of sale shall be given by the commission which shall be published in at least two of the official newspapers of the county once a week for two successive weeks next before the day, on or after which the sale is to be made, which date, and the location where such auction will be held, shall be stated in the notice and shall be at least fifteen days from the first publication of notice. The right to reject any and all bids is reserved. A sale may not be made before the day set but shall be made within sixty days thereafter. If bids or offers are used, the bids shall be in writing and shall be filed in the office of the chairman or secretary of the commission in Pierre.
Source: SL 1961, ch 316, § 2 (f); SL 1963, ch 321, § 1; SL 2011, ch 2, § 67.
5-15-19. Sale of property to public agencies--Advertisement not required--Approval by Board of Finance.
The commission may make sales of structures, material, or property severed from the land, or other personal property to the public and to other state agencies, departments, or political subdivisions. Such sales to state agencies, departments, or political subdivisions shall follow the procedures for other sales. However, no notice or advertisement for bid requirements or time of sale requirements applies to such sale. If the sale of any such property agreed to by the commission exceeds the sum of one hundred dollars, the sale shall be submitted by the commission to the State Board of Finance for approval and, if approved, a bill of sale may be executed by the commission.
Source: SL 1961, ch 316, § 2 (f); SL 1963, ch 321, § 1; SL 2011, ch 2, § 68.
5-15-20. Destruction and disposal of buildings.
The commission may dispose of, wreck, and destroy any building acquired by it, its determination therefor to be approved by the State Board of Finance.
Source: SL 1961, ch 316, § 2 (f); SL 1963, ch 321, § 1; SL 2011, ch 2, § 69.
5-15-23. Promulgation of rules for complex restoration and beautification.
The commission may promulgate rules, pursuant to chapter 1-26, necessary and proper for the purposes of and not inconsistent with §§ 5-15-1 to 5-15-20, inclusive.
Source: SL 1961, ch 316, § 2 (e); SL 2006, ch 2, § 19; SL 2011, ch 2, § 70.
5-15-24. Governor's Grove.
A portion of the capitol grounds, as now exists and lies north of Church Street located in Hilger's Gulch shall be known as the Governor's Grove. The Governor's Grove shall, under the supervision of the Bureau of Human Resources and Administration, be properly landscaped and parked and shall contain a grove of hardy, long-lived trees, each one properly marked and maintained as a memorial grove to the past, present, and future Governors of South Dakota. A new tree, as an addition to such grove, shall be set out and properly dedicated on the first Arbor Day following the election of each Governor. This grove shall be maintained as an adjunct to the capitol grounds and shall be used for no other memorial purpose than as is provided for in this section. However, a gateway to the grove may be provided in which each county in the state shall be represented by a properly inscribed stone or marker.
Source: SL 1949, ch 243, §§ 1 to 3; SDC Supp 1960, § 55.0114; SL 2011, ch 2, § 71; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-15-25. Supervision of improvements and extensions of capitol grounds and buildings.
Except as provided by §§ 5-14-2 and 5-15-17, the Bureau of Human Resources and Administration shall have control and supervision of all permanent improvements and extensions of the capitol grounds and buildings and of the disbursement of all moneys appropriated for such purposes.
Source: SL 1907, ch 83; SL 1909, ch 9; SL 1911, ch 27; SL 1913, ch 105; SL 1915, ch 41; SL 1915, ch 56; SL 1917, ch 103; RC 1919, § 10178; SDC 1939, § 55.2008; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-15-26. Maintenance and protection of buildings and grounds--Employment of personnel.
The commissioner of human resources and administration shall be the superintendent of the state capitol. The commissioner shall control, manage, and supervise the buildings and grounds. The commissioner shall employ engineers, carpenters, electricians, plumbers, mechanics, watchmen, policemen, elevator operators, guides, janitors, and other laborers as may be necessary for the proper care, safety, management, and maintenance of the capitol and grounds, and the public property there kept, and for the proper protection of the properties from injury and deterioration.
Source: SL 1925, ch 115, ch II, art VI, § 2; SDC 1939, § 55.2702; SL 2011, ch 2, § 75; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-15-27. Procurement of office space outside capitol building.
The Bureau of Human Resources and Administration shall also, under the direction of the commissioner of human resources and administration, and with the consent of the Governor, arrange for procuring office rooms outside of the capitol where necessity requires.
Source: SL 1925, ch 115, ch II, art VI, § 2; SDC 1939, § 55.2702; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-15-28. Working capital account for maintenance of buildings and grounds.
There is hereby established a working capital account in the state treasury for the purpose of providing maintenance services for the various buildings and grounds under the jurisdiction of the Bureau of Human Resources and Administration.
Source: SL 1966, ch 182, § 1; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-15-29. Reimbursement by agencies of depreciation and maintenance costs.
The Bureau of Human Resources and Administration may require state agencies to reimburse the bureau for the depreciation of physical facilities computed on their useful life and the actual cost of providing maintenance of physical facilities, including a proper share of utility costs, janitorial services, and supplies, utilized by the agency receiving such services. Such reimbursements shall be made to the Bureau of Human Resources and Administration on a monthly basis and the receipts from the reimbursements shall be deposited in the maintenance revolving account established in § 5-15-28.
Source: SL 1966, ch 182, § 2; SL 1979, ch 35, § 1; SL 1985, ch 33, § 57; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-15-29.1. Building depreciation fund--Expenditures.
There is hereby established a building depreciation fund in which funds collected for depreciation pursuant to § 5-15-29 shall be deposited. Expenditures from such fund shall be made only upon approval of the Legislature or the special committee created by chapter 4-8A.
Source: SL 1979, ch 35, § 2.
5-15-29.2. Public buildings fund--Deposit of proceeds from sale or lease of public lands.
There is hereby created the public buildings fund in the state treasury into which shall be deposited all proceeds from the sale or lease of those public lands granted in §§ 12 and 17 of the Enabling Act for the construction, reconstruction, repair, renovation, furnishings, and equipment of public buildings at the state capitol. The commissioner of school and public lands is hereby directed to deposit all such proceeds earned after July 1, 1987, into the public buildings fund.
Source: SL 1987, ch 53, § 1.
5-15-30. Expenditures from maintenance working capital account.
Expenditures may be made from the maintenance working capital account established in § 5-15-28 for the purpose of providing maintenance services of buildings and grounds, but for no other purpose. Such expenditures shall be disbursed on warrants drawn by the state auditor pursuant to vouchers approved by the Bureau of Human Resources and Administration.
Source: SL 1966, ch 182, § 3; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-15-34. Promulgation of rules for conduct in capitol complex and grounds.
The commissioner of human resources and administration may promulgate such rules pursuant to chapter 1-26 as may be necessary to promote the health, safety, and general welfare, to prohibit public intoxication, disturbances, and disorderly assemblies, to keep the peace, and to declare what constitutes a nuisance within the buildings of the capitol complex and the capitol grounds. These rules may include the regulation of hours of general public accessibility to buildings within the capitol complex and the regulation of obstruction, speed limits, and parking on the streets and alleys within the capitol grounds.
Source: SL 1974, ch 48, § 2; SL 2011, ch 2, § 79; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-15-35. Violation of rule as petty offense.
Any person who violates a rule promulgated pursuant to § 5-15-34 commits a petty offense.
Source: SL 1974, ch 48, § 3; SL 1975, ch 54; SL 1980, ch 24, § 71; SL 2011, ch 2, § 80.
5-15-36. Policy-making and oversight duties of commission.
The commission shall set policy for and oversee the restoration and beautification of the state capitol complex, Pierre, South Dakota.
Source: SL 1976, ch 58, § 1; SL 1980, ch 48, § 12; SL 2011, ch 2, § 81.
5-15-36.1. Renovation plans--Commission approval.
The commission shall approve any plan of renovation of the capitol complex before the renovation may be constructed.
Source: SL 1980, ch 48, § 11B; SL 2011, ch 2, § 82.
5-15-44. Historic areas of capitol building--Protection and preservation--Restoration projects.
The commission created by § 5-15-1 shall protect and preserve the integrity of the historic areas of the state capitol building and shall, from time to time, propose restoration projects to restore historic areas to their original appearance insofar as this objective is compatible with modern use.
Source: SL 1980, ch 49, § 1; SL 2011, ch 2, § 83.
5-15-45. Alteration or covering of historic area prohibited--Public access--Exceptions.
No person may alter, change, remodel, partition, cover, or conceal an historic area which is a part of the state capitol building. In addition, no person may deny access to an historic area traditionally open to the public by creating physical barriers to access by the public except as may be necessary for public health, safety, or the safety of the property, or for the orderly conduct of state business, without the approval of the commission. However, the commissioner of human resources and administration temporarily may deny access to any area by the public or create temporary barriers for a period up to ninety days if, in the commissioner's judgment, it is necessary to do so for the public health, safety, or the safety of the property, or to permit the orderly conduct of state business.
Source: SL 1980, ch 49, § 1; SL 2011, ch 2, § 84; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-15-46. Historic area traditionally open to the public.
For purposes of §§ 5-15-44 to 5-15-48, inclusive, an "historic area traditionally open to the public" includes the exterior of the state capitol building, the grounds of the state capitol building bordered by Capitol Lake, Capitol Avenue, Nicollet Avenue, and Broadway Avenue, the hallways on the first, second, third, and fourth floors of the state capitol building and the rotunda of the state capitol building.
Source: SL 1980, ch 49, § 2.
5-15-47. Historic area defined.
For the purposes of §§ 5-15-44 to 5-15-48, inclusive, an "historic area" includes the chambers of the Supreme Court, the legislative chambers of the State House of Representatives and the State Senate, the reception area traditionally used by the Governor, and any mural, painting, statue, or decoration created for or attached to the state capitol building.
Source: SL 1980, ch 49, § 3.
5-15-48. Control of areas traditionally reserved to Governor, Legislature, and Supreme Court.
Nothing in §§ 5-15-44 to 5-15-48, inclusive, may be construed as to prevent the Governor, Legislature, or Supreme Court from controlling the areas traditionally reserved for their use in the course of the conduct of public business except insofar as such usage may require the permanent alteration of the physical features of the state capitol building which shall require the approval of the State Capitol Complex Restoration and Renovation Commission as provided in § 5-15-45.
Source: SL 1980, ch 49, § 4.
5-15-49. Repealed.
Source: SL 1986, ch 52; SL 2003, ch 272 (Ex. Ord. 03-1), § 106; SL 2011, ch 1 (Ex. Ord. 11-1), § 91, eff. Apr. 12, 2011; SL 2015, ch 277 (Ex. Ord. 15-1), § 30, eff. Apr. 20, 2015; SL 2021, ch 7, § 41.
5-15-50. Bust of Peter Norbeck.
The State of South Dakota accepts the gift of Mrs. Peter Norbeck of a bust of the late United States Senator Norbeck and former Governor of this state, sculptured by the late Gutzon Borglum, to be placed in a suitable place on the capitol grounds to be determined by the commission.
Source: SL 1951, ch 305; SL 1989, ch 53, § 1; SL 2011, ch 2, § 85.
5-15-51. Statue of General William Henry Harrison Beadle.
The granite statue of General William Henry Harrison Beadle, South Dakota educator shall be permanently displayed in the state capitol on an appropriate pedestal.
Source: SL 1987, ch 54; SL 1989, ch 53, § 2; SL 2011, ch 2, § 86.
5-15-52. Official tribal flag--Capitol building display.
The official flag of each of the nine federally recognized Indian tribes that share the common boundaries of this state may be displayed in a suitable place in the rotunda of the capitol building to be determined by the commission, with the agreement of the corresponding tribal government.
The Legislature may hold a ceremony open to the public to honor and recognize the flag display during each legislative session and representatives from each branch of state government and from each tribe shall be invited to participate.
Source: SL 2021, ch 32, § 1.
5-15-53. POW/MIA flag to be displayed.
The POW/MIA flag must be displayed in a suitable place in the Senate and House of Representatives chambers of the state capitol building.
Source: SL 2022, ch 18, § 1.
5-16-1
New facilities for officers and employees not to be provided.
5-16-2
Provision of facilities for officers and employees to be eliminated or discontinued.
5-16-3
Exemptions from restrictions on housing facilities.
5-16-4
Furnishings not to be provided in state-owned facilities--Exceptions.
5-16-1. New facilities for officers and employees not to be provided.
No living quarters, lodging, or domicile for the residency or occupancy of any state employee or officer, with or without his family, shall be constructed, purchased, or otherwise secured with state funds, except as provided in § 5-16-3.
Source: SL 1963, ch 324, § 1.
5-16-2. Provision of facilities for officers and employees to be eliminated or discontinued.
The chief executive officers and boards of control of all state agencies and institutions which make available living quarters, lodging, or domicile for the residency or occupancy of any state employee or officer, with or without his family, are hereby directed to make an immediate and deliberate effort to eliminate or discontinue such making available of living quarters, lodging, or domicile, or both such elimination and discontinuance, except as provided in § 5-16-3.
Source: SL 1963, ch 324, § 2.
5-16-3. Exemptions from restrictions on housing facilities.
The provisions of §§ 5-16-1 and 5-16-2 shall not apply to living quarters, lodging, or domicile for the residency or occupancy of any of the following state employees or officers:
(1) Governor;
(2) Chief executive officers of state institutions;
(3) Any employee of any state institution the nature of whose duties requires his presence at or near such institution as subject to call for duty at any time;
(4) Any employee of any state agency or institution the nature of whose duties requires his presence on or near the grounds of any park, memorial, or campus for security purposes.
Source: SL 1963, ch 324, § 3.
5-16-4. Furnishings not to be provided in state-owned facilities--Exceptions.
The chief executive officers and boards of control of all state agencies and institutions making available living quarters, lodging, or domicile for the residency or occupancy of any state employee or officer, with or without his family, shall not provide, supply, or otherwise make available any new, additional, or replacement furnishings, furniture, or other nonpermanent equipment, other than floor coverings and window drapes, for such living quarters, lodging, or domicile. Provided, however, that this section shall not apply to the Governor's mansion.
Source: SL 1963, ch 324, § 4; SL 1967, ch 259.
5-17-1, 5-17-2. Repealed.
5-17-2.1
Superseded.
5-17-2.2 to 5-17-5.1. Repealed.
5-17-5.2
Transferred.
5-17-5.3 to 5-17-10. Repealed.
5-17-11
Repealed.
5-17-12 to 5-17-19. Repealed.
5-17-20
Repealed.
5-17-21 to 5-17-30. Repealed.
5-17-31
Repealed.
5-17-32
Repealed.
5-17-33 to 5-17-41. Repealed.
5-17-42
Transferred.
5-18-1 to 5-18-2. Repealed.
5-18-2.1
Repealed.
5-18-3 to 5-18-62. Repealed.
CHAPTER 5-18A
PUBLIC AGENCY PROCUREMENT--GENERAL PROVISIONS
5-18A-1 Definitions.
5-18A-2 Application to purchasing agency contracts.
5-18A-3 Methods of awarding contracts.
5-18A-4 Competitive sealed bids required.
5-18A-5 Procedures for competitive sealed bids.
5-18A-6 Competitive sealed proposals--When permitted.
5-18A-7 Procedures for competitive sealed proposals.
5-18A-8 Unique supplies or services--Sole source procurement--Negotiations.
5-18A-9 Emergency procurement.
5-18A-10 Records of sole source procurement and emergency procurement contracts.
5-18A-11 Purchases of supplies and services under fifty thousand dollars.
5-18A-12 Cancellation of invitation for bids or request for proposals and rejection of bids or proposals.
5-18A-13 Centralized public bid exchange created.
5-18A-14 Public improvement contracts--Supplies and services contracts--Advertisement for bids or proposals.
5-18A-15 Time for entering into contract.
5-18A-16 Recovery from defaulting bidder or offeror.
5-18A-17 Self-dealing by state officer or employee in award or terms of agency contract prohibited.
5-18A-17.1 Direct benefit from contract.
5-18A-17.2 Authorization of officer or employee to be a party to or derive direct benefit from contract.
5-18A-17.3 Authorization of contract with former officer or employee.
5-18A-17.4 Self-dealing violation as misdemeanor--Removal--Forfeiture of benefit--Contract voidable.
5-18A-17.5 Specific conflict of interest prohibitions not affected.
5-18A-17.6 Definitions applicable to §§ 5-18A-17 to 5-18A-17.5.
5-18A-18 Specifications to promote economy and encourage competition--Circumstances under which brand name or equal specifications permitted.
5-18A-19 Requirements for brand name or equal specifications.
5-18A-20 Circumstances under which brand name only specifications permitted.
5-18A-21 Written contract required--Signatures.
5-18A-22 Procurements exempt from chapters 5-18A through 5-18D.
5-18A-23 Purchase of foreign meat food products prohibited.
5-18A-24 Grade A milk processors preferred.
5-18A-25 Preferences to certain resident businesses, qualified agencies, and businesses using South Dakota supplies or services.
5-18A-26 Resident bidder preferred over nonresident bidder from state or foreign province that has preference for resident bidders.
5-18A-27 List of states with resident bidder preferences.
5-18A-28 List of supplies, custodial services, and maintenance services provided by qualified agency.
5-18A-29 Persons with disabilities.
5-18A-30 Supplies manufactured from recycled or biobased materials.
5-18A-31 Information regarding preferences to be provided.
5-18A-32 Procurements utilizing federal funds.
5-18A-33 Disallowance of noncomplying bid or offer--Contracts in violation void.
5-18A-34 Bureau of Human Resources and Administration to serve as state's central procurement agency.
5-18A-35 Bond or approved security.
5-18A-36 Performance and payment bond or approved security.
5-18A-37 Cooperation and agreements with other state and federal purchasing agencies.
5-18A-38 Environmentally preferable products to be selected.
5-18A-39 Reverse auction permitted for certain procurements.
5-18A-40 Procedures applicable to reverse auctions.
5-18A-41 Bureau of Human Resources and Administration to conduct reverse auction for supplies for state agency.
5-18A-42 Fair and open competition in government contracts.
5-18A-43 Terms prohibited in construction contracts.
5-18A-44 Conditional grant, tax abatement, and tax credit prohibited in construction contracts.
5-18A-45 Conditions related to agreements with labor organizations.
5-18A-46 Exemptions for special circumstances.
5-18A-47 Construction with National Labor Relations Act.
5-18A-48 Persons involved in grant or contract determinations ineligible for grant or contract--Performance evaluation by recipients and sub-recipients prohibited.
5-18A-49 Forms for acknowledging review of conflict of interest policy and disclosing conflicts.
5-18A-50 Prohibited foreign contracts--Certification.
5-18A-51 Prohibited foreign contracts--Notice--Certify on offer--Termination permitted.
5-18A-52 Prohibited foreign contracts--Grounds for waiver.
5-18A-53 Prohibited foreign contracts--False certification--Cause to suspend or debar.
5-18A-1. Definitions.
Terms used in this chapter and chapters 5-18B, 5-18C, and 5-18D mean:
(1) "Acceptance," the formal resolution of a purchasing agency authorizing the execution of a design-build contract;
(2) "Biobased," any materials composed wholly or in a significant part of biological products including renewable agricultural materials or forestry materials;
(3) "Contract," any type of agreement, regardless of what the agreement may be called, for the procurement of supplies, services, or construction;
(4) "Construction," and "constructed," in addition to their ordinary meaning, repair, demolition, and alteration;
(5) "Construction management," any project delivery system based on an agreement whereby a construction manager provides leadership to the construction process through a series of services to the purchasing agency;
(6) "Construction manager," any person or entity that provides construction management services for a purchasing agency, and is either a construction manager-agent or construction manager-at-risk;
(7) "Construction manager-agent," any construction manager that provides construction management services to a purchasing agency in a fiduciary capacity;
(8) "Construction manager-at-risk," any construction manager that assumes the risk for construction, rehabilitation, alteration, or repair of a public improvement and that provides construction management services to the purchasing agency;
(9) "Design-build contract," any contract between a purchasing agency and a design-builder to furnish the architecture, engineering, and related services as required, and the labor, materials, and other construction services for a public improvement. A design-build contract may be conditioned upon future refinements in scope and price, and may permit the purchasing agency to make changes in the scope of the project without invalidating the design-build contract;
(10) "Design-build proposal," an offer to enter into a design-build contract;
(11) "Design-build request for proposals," any document or publication whereby a purchasing agency solicits proposals for a design-build contract;
(12) "Design-builder," any person that proposes to design and construct a public improvement covered by the procedures of this chapter and chapters 5-18B, 5-18C, and 5-18D;
(13) "Environmentally preferable product," any cleaning or maintenance product having properties that minimize potential impacts to human health and the environment, any product designed to conserve energy and water, any biobased product, and any product containing recycled materials or recovered materials;
(14) "Internet," the international computer network of both federal and nonfederal interoperable packet switched data networks, including the graphical subnetwork called the world wide web;
(15) "Invitation for bids," any document, whether attached or incorporated by reference, used for soliciting bids;
(16) "Officer," any elected official or administrative officer appointed to that position by the governing body;
(17) "Performance criteria," requirements for the public improvement, including as appropriate, capacity, durability, production standards, ingress and egress requirements, building code requirements, or other criteria for the intended use of the public improvement, expressed in performance-oriented specifications or drawings suitable to allow the design-builder to make a proposal;
(18) "Performance criteria developer," any person and the person's subcontractors retained by the purchasing agency to develop performance criteria;
(19) "Professional services," services arising out of a vocation, calling, occupation, or employment involving specialized knowledge, labor, or skill, and the labor or skill involved is predominantly mental or intellectual, rather than physical or manual;
(19A) “Prohibited entity,” an organization, association, corporation, partnership, joint venture, limited partnership, limited liability partnership, limited liability company, or other entity or business association, including all wholly owned subsidiaries, majority-owned subsidiaries, parent companies, or affiliates, of those entities or business associations, regardless of their principal place of business, which is ultimately owned or controlled by:
(a) A foreign parent entity from the People's Republic of China, the Republic of Cuba, the Islamic Republic of Iran, the Democratic People's Republic of Korea, the Russian Federation, or the Bolivarian Republic of Venezuela; or
(b) The government of the People's Republic of China, the Republic of Cuba, the Islamic Republic of Iran, the Democratic People's Republic of Korea, the Russian Federation, or the Bolivarian Republic of Venezuela.
A prohibited entity does not include a citizen or legal permanent resident of the United States, or an individual foreign national;
(20) "Proposal," any offer to enter into contract in response to a request for proposals;
(21) "Purchasing agency," any governmental body or officer authorized by law, administrative rule, or delegated authority, to enter into contracts;
(22) "Public improvement," the process of building, altering, repairing, improving, or demolishing any public infrastructure facility, including any utility infrastructure, structure, building, or other improvements of any kind to real property, the cost of which is payable from taxes or other funds under the control of the purchasing agency, and includes any local improvement for which a special assessment is to be levied;
(23) "Qualified agency," any public or private nonprofit corporation geographically located in the State of South Dakota that provides services for persons with disabilities and is certified by the Department of Human Services;
(24) "Request for proposals," any document, whether attached or incorporated by reference, utilized by a purchasing agency when soliciting proposals for contracts for the procurement of supplies, services, or construction;
(25) "Request for qualifications," the document or publication whereby a purchasing agency solicits interested design-builders to pre-qualify for a design-build contract;
(26) "Resident," any person, partnership, association, limited liability company, foreign limited liability company, corporation, or foreign corporation licensed to do business within this state that has maintained a substantial and bona fide place of business and has conducted business from within this state for at least one year prior to the date on which a contract was awarded. The members of the partnership or association shall have been bona fide residents of the state for one year or more immediately prior to bidding upon the contract. A foreign corporation licensed pursuant to §§ 47-1A-1501 to 47-1A-1532, inclusive, is not a resident as defined by this section if the state or country in which it is organized enforces or has a preference for resident bidders;
(26A) "Reverse auction," a purchasing process in which bidders submit bids in competing to sell supplies or nonprofessional services in an open environment via the internet;
(27) "Sealed bid or proposal," a response to an invitation for bids or request for proposals submitted in a manner where the contents of the bid or proposal cannot be opened or viewed before the date and time of the formal opening without leaving evidence that the bid or proposal has been opened or viewed;
(28) "Services," furnishing of labor, time, or effort by a contractor not involving the delivery of a specific end product other than reports which are merely incidental to the required performance;
(29) "Supplies," any property, including equipment, materials, and printing;
(30) "Surety," a bond or undertaking executed by a surety company authorized to do business in the State of South Dakota and countersigned by an agent of the company resident in the State of South Dakota. However, nothing in this subdivision requires countersignature of a bid bond.
Source: SL 2010, ch 31, § 2; SL 2013, ch 29, § 4; SL 2023, ch 17, § 1; SL 2023, ch 18, § 1.
5-18A-2. Application to purchasing agency contracts.
Unless otherwise authorized by law, the provisions of this chapter and chapters 5-18B, 5-18C, and 5-18D apply to all contracts issued by any purchasing agency.
Source: SL 2010, ch 31, § 3.
5-18A-3. Methods of awarding contracts.
Unless otherwise authorized by law, each contract for supplies, services, and construction shall be awarded by one of the following methods:
(1) Competitive sealed bids as provided in § 5-18A-5;
(2) Competitive sealed proposals as provided in §§ 5-18A-6 and 5-18A-7;
(3) Small purchases as provided in § 5-18A-11;
(4) Sole source procurement as provided in § 5-18A-8; or
(5) Emergency procurement as provided in § 5-18A-9.
Source: SL 2010, ch 31, § 4.
5-18A-4. Competitive sealed bids required.
Contracts shall be awarded by the use of competitive sealed bids except as otherwise provided in this chapter and chapters 5-18B, 5-18C, and 5-18D.
Source: SL 2010, ch 31, § 5.
5-18A-5. Procedures for competitive sealed bids.
The following procedures apply to the use of competitive sealed bids:
(1) Public notice of the invitation for bids shall be given pursuant to § 5-18A-14;
(2) The invitation for bids shall include a purchase description, all contractual terms and conditions applicable to the procurement. The invitation for bids for supplies shall include the length of time, not to exceed forty-five days, between the bid opening and the award of the bid;
(3) A bid may be submitted either manually or electronically in a manner authorized by the purchasing agency;
(4) Each bid shall be opened publicly in the presence of one or more witnesses at the time and place designated in the invitation for bids. The amount of each bid, and other relevant information as may be specified, together with the name of each bidder shall be recorded. Except as otherwise provided by law, the record and each bid shall be open to public inspection;
(5) Each bid shall be unconditionally accepted without alteration or correction, except as authorized in this section. Each bid shall be evaluated based on the requirements set forth in the invitation for bids, which may include criteria to determine acceptability such as inspection, testing, quality, workmanship, delivery, and suitability for a particular purpose. Those criteria that will affect the bid price and be considered in evaluation for award shall be objectively measurable, such as discounts, transportation costs, and total or life cycle costs. The invitation for bids shall set forth the evaluation criteria to be used. No criteria may be used in bid evaluation that are not set forth in the invitation for bids;
(6) Any bid may be withdrawn by letter, by electronic communications, or in person before the time specified in the advertisement for bid. The purchasing agency may allow modification of bids by mail, facsimile, or electronic notice received at the place designated in the invitation to bid not later than the time set for the opening of bids. A modification may not reveal the bid price but shall provide the addition, subtraction, or modification so the final prices or terms will not be known to the purchasing agency until the sealed bid is opened. A modification may not be withdrawn after the time set for the opening of bids. Each modification shall be confirmed in writing by the successful bidder before award of the contract. No bid made may be changed or altered by telephone. After bid opening, no withdrawal of a bid or change in bid prices or other provisions of bids prejudicial to the interest of the purchasing agency or fair competition is permitted. The purchasing agency may waive technical irregularities in the bid or proposal of the low bidder or offeror that do not alter the price, quality, or quantity of the services, or items of tangible personal property bid or offered. Any decision to permit the correction or withdrawal of a bid, or to cancel an award or a contract based on a bid mistake, shall be supported by a written determination made by the purchasing agency, and included in the bid file;
(7) The contract for services or public improvement shall be awarded within thirty days and the contract for supplies shall be awarded within forty-five days of the bid opening by written notice to the lowest responsible and responsive bidder whose bid meets the requirements and criteria set forth in the invitation for bids. The purchasing agency may reject any and all bids and readvertise for bids if none of the bids are satisfactory, or if the purchasing agency believes an agreement has been entered into by the bidders to prevent competition. If the low bidder is not responsible or the bid is not made in accordance with the requirements of this chapter and chapters 5-18B, 5-18C, and 5-18D or the low bid is withdrawn as authorized by this section, the bid of the next lowest responsible and responsive bidder may be accepted;
(8) If it is considered impractical to initially prepare a purchase description to support an award based on price, an invitation for bids may be issued requesting the submission of unpriced offers to be followed by an invitation for bids limited to those bidders whose offers have been qualified under the criteria set forth in the first solicitation;
(9) If, after advertising for bids, no firm bids are received, the purchasing agency may negotiate a contract for the purchase of the supplies, services, or public improvement projects at the most advantageous price, if the specifications of the original bid are met;
(10) If two or more competitive sealed bids submitted are identical in price and product quality, the bids are the low bid, and no resident bidder preference is applicable, the purchasing agency may:
(a) Award the bid by lottery to one of the identical low bidders; or
(b) Reject all the bids and resolicit bids for the required supplies, services, or public improvement.
Source: SL 2010, ch 31, § 6; SL 2016, ch 39, § 1.
5-18A-6. Competitive sealed proposals--When permitted.
A contract may be entered into by competitive sealed proposals if the purchasing agency determines in writing that the use of competitive sealed bids is either not practicable or not advantageous.
Source: SL 2010, ch 31, § 7.
5-18A-7. Procedures for competitive sealed proposals.
The procedures for issuing a contract through competitive sealed proposals are as follows:
(1) The proposals shall be solicited through a request for proposals. The request for proposals shall state the relative importance of price and other factors, if any;
(2) Public notice of the request for proposals shall be given pursuant to § 5-18A-14;
(3) A proposal may be submitted either manually or electronically in a manner authorized by the purchasing agency;
(4) Each proposal shall be opened so as to avoid disclosure of contents to competing offerors during the process of negotiation. A register of proposals shall be prepared documenting the name and address of each offeror and identifying each offeror awarded a contract. The register shall be open for public inspection after contract award;
(5) As provided in the request for proposals, a discussion may be conducted with any responsible offeror who submitted a proposal determined to be reasonably susceptible of being selected for award for the purpose of clarification to assure full understanding of, and responsiveness to, the solicitation requirements. Each offeror shall be accorded fair and equal treatment with respect to any opportunity for discussion and revision of a proposal. A revision may be permitted after a submission and prior to an award for the purpose of obtaining the best and final offer. In conducting any discussion, there may be no disclosure of any information derived from any proposal submitted by a competing offeror;
(6) An award shall be made to the responsible offeror whose proposal conforms to the solicitation and is determined in writing to be the most advantageous to the purchasing agency taking into consideration price and the evaluation factors set forth in the request for proposals. No other factors or criteria may be used in the evaluation. The contract file shall contain the basis on which the award is made. Written notice of the award of a contract to the successful offeror shall be promptly given to each offeror. The purchasing agency may reject any and all proposals and readvertise for proposals if none of the proposals are satisfactory, or if the purchasing agency believes any agreement has been entered into by the offerors to prevent competition; and
(7) This section does not apply to state professional service contracts issued pursuant to § 5-18A-37 and §§ 5-18D-17 to 5-18D-24, inclusive.
Source: SL 2010, ch 31, § 8.
5-18A-8. Unique supplies or services--Sole source procurement--Negotiations.
A contract may be awarded for supplies or services without competition if the purchasing agency determines in writing that the supplies or services are of such a unique nature that the contractor selected is clearly and justifiably the only practicable source to provide the supplies or services. The determination that the contractor selected is justifiably the sole source shall be based on either the uniqueness of the supplies or services or the sole availability at the location required. In such cases, the purchasing agency shall conduct negotiations, including price, delivery, and quantity to obtain the most advantageous price and shall include the written verification of the sole source in the contract file. This section does not apply to construction services or construction equipment.
Source: SL 2010, ch 31, § 9.
5-18A-9. Emergency procurement.
A purchasing agency may make or authorize others to make an emergency procurement without advertising the procurement if rentals are not practicable and there exists a threat to public health, welfare, or safety or for other urgent and compelling reasons. Failure to abide by the bid provisions of this chapter and chapters 5-18B, 5-18C, and 5-18D in a timely manner is not an emergency. An emergency procurement shall be made with such competition as is practicable under the circumstances. A written determination of the basis for the emergency and for the selection of the particular contractor shall be included in the contract file.
Source: SL 2010, ch 31, § 10.
5-18A-10. Records of sole source procurement and emergency procurement contracts.
The purchasing agency shall maintain a record listing each contract made under sole source procurement and emergency procurement for a minimum of five years. The record shall contain:
(1) Each contractor's name;
(2) The amount and type of each contract; and
(3) A listing of the supplies, services, and public improvements procured under each contract.
Source: SL 2010, ch 31, § 11.
5-18A-11. Purchases of supplies and services under fifty thousand dollars.
Unless otherwise specified by statute, purchases of supplies and services under fifty thousand dollars must be made as follows:
(1) Notwithstanding other provisions of chapter 5-18A or 5-18D, the Bureau of Human Resources and Administration may authorize state agencies and institutions to make purchases of supplies over four thousand dollars and under fifty thousand dollars by obtaining three quotes from different vendors. If three quotes cannot be obtained, the Bureau of Human Resources and Administration may approve the purchase if in the best interest of the state, require additional quotes to be obtained, or require the purchase be advertised for bids;
(2) State purchases of supplies under four thousand dollars may be made in accordance with procedures established by the purchasing agency in the best interests of the state;
(3) State purchases of services under fifty thousand dollars may be made in accordance with procedures established by the purchasing agency in the best interests of the state; and
(4) For all other purchasing agencies, purchases under fifty thousand dollars may be made in accordance with procedures established by the purchasing agency.
No purchases may be artificially divided to constitute a small purchase under this section.
Source: SL 2010, ch 31, § 12; SL 2011, ch 31, § 2; SL 2023, ch 17, § 2; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-18A-12. Cancellation of invitation for bids or request for proposals and rejection of bids or proposals.
An invitation for bids, a request for proposals, or other solicitation may be canceled, or any or all bids or proposals may be rejected in whole or in part as may be specified in the solicitation, if the purchasing agency determines it is in the best interests of the agency. The reasons for the cancellation or rejection shall be made part of the contract file.
Source: SL 2010, ch 31, § 13.
5-18A-13. Centralized public bid exchange created.
There is hereby created a centralized public bid exchange. The Bureau of Human Resources and Administration shall establish the exchange either within the bureau or within another public or private organization. The purpose of the exchange is to facilitate the publishing of official state and political subdivision bids to provide greater notice to bidders and to the state and its political subdivisions. The exchange shall maintain a list of all state bids and proposals and all bids and proposals provided by political subdivisions which participate in the exchange. The exchange shall set and charge each bidder, offeror, or political subdivision or both a fee for participation in the exchange to defray the cost of administering the exchange.
Source: SL 2010, ch 31, § 14; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-18A-14. Public improvement contracts--Supplies and services contracts--Advertisement for bids or proposals.
If the purchasing agency intends to enter into a contract for any public improvement that involves the expenditure of one hundred thousand dollars or more, or a contract for the purchase of supplies or services, other than professional services, that involves the expenditure of fifty thousand dollars or more, the purchasing agency shall advertise for bids or proposals. The advertisement shall appear as a legal notice in the appointed legal newspaper. The advertisement shall be printed at least twice, with the first publication at least ten days before opening of bids or the deadline for the submission of proposals. The first publication shall be in each official newspaper of the purchasing agency, and the second publication may be in any legal newspaper of the state chosen by the purchasing agency. If the purchasing agency has no official newspaper, the first publication shall be made in a legal newspaper with general circulation in the jurisdiction of the purchasing agency to be selected by the purchasing agency. The advertisement shall state the time and place where the bids will be opened or the deadline for the submission of proposals. In each notice, the purchasing agency shall reserve the right to reject any or all bids or proposals.
Source: SL 2010, ch 31, § 15; SL 2020, ch 22, § 1; SL 2023, ch 17, § 3.
5-18A-15. Time for entering into contract.
After receiving notice of a contract award, the successful bidder or offeror shall enter into a contract with the purchasing agency within the time specified in the invitation for bids or request for proposals. If any bidder or offeror fails to enter into a contract within the time specified, the contract may be awarded to the next lowest responsive and responsible bidder or offeror for the same kind of work and material, unless all bids or proposals are rejected. The defaulting bidder or offeror shall be responsible for the difference in price.
Source: SL 2010, ch 31, § 16.
5-18A-16. Recovery from defaulting bidder or offeror.
If any successful bidder or offeror fails to fulfill the conditions of an awarded contract, the purchasing agency may proceed to recover from the defaulting party whatever damages may have been sustained as a result of the default. The purchasing agency shall have all remedies provided in the contract and provided by law.
Source: SL 2010, ch 31, § 17.
5-18A-17. Self-dealing by state officer or employee in award or terms of agency contract prohibited.
No state officer or employee who approves, awards, or administers a contract on behalf of a state agency, may have an interest in a contract or derive a direct benefit from a contract that is within the scope of the officer's or employee's official duties, nor for a one-year period following the end of their employment or position as a state officer may the officer or employee derive a direct benefit as a result of such contract except as provided in § 5-18A-17.2. In addition, no such officer or employee may enter into any contract, other than a contract of employment, with any state agency for a period of one year following their leaving office or employment except as provided in § 5-18A-17.3. This prohibition includes any state officer or employee who, in his or her official capacity, recommends the approval or award of the contract or who supervises a person who approves, awards, or administers the contract. This prohibition does not include any state officer who serves without compensation or who may be paid per diem pursuant to § 4-7-10.4.
Source: SL 2010, ch 31, § 18; SL 2011, ch 2, § 154; SL 2015, ch 30, § 2.
5-18A-17.1. Direct benefit from contract.
A state officer or employee derives a direct benefit from a contract if the state officer or employee, the officer's or employee's spouse, or other persons with whom the state officer or employee lives and commingles assets:
(1) Has more than a five percent ownership or other interest in an entity that is a party to the contract;
(2) Derives income, compensation, or commission directly from the contract or from the entity that is a party to the contract;
(3) Acquires property under the contract; or
(4) Serves on the board of directors of a for-profit entity that derives income or commission directly from the contract or acquires property under the contract.
A state officer or employee does not derive a direct benefit from a contract based solely on the value associated with the officer's or employee's investments or holdings, or the investments or holdings of other persons with whom the state officer or employee lives and commingles assets.
Source: SL 2015, ch 30, § 3.
5-18A-17.2. Authorization of officer or employee to be a party to or derive direct benefit from contract.
A governing body may authorize an officer or employee whose responsibilities include approving, awarding, or administering a contract on behalf of a state agency or supervising any employee who has these responsibilities to be a party to or derive a direct benefit from a contract if:
(1) The officer or employee has provided full written disclosure to the governing body;
(2) The governing body has reviewed the essential terms of the transaction or contract and the state officer's or employee's role in the contract or transaction; and
(3) The transaction and the terms of the contract are fair, reasonable, and not contrary to the public interest.
The authorization shall be in writing. Any authorization given pursuant to this section is a public record. Each authorization shall be filed with the commissioner of human resources and administration, who shall compile the authorizations and present them annually for review by the Government Operations and Audit Committee.
Source: SL 2015, ch 30, § 4; SL 2024, ch 1 (Ex. Ord. 24-1), §§ 13, 35, eff. Apr. 8, 2024.
5-18A-17.3. Authorization of contract with former officer or employee.
Within the one-year period prohibiting any contract with a state agency, the governing body of the state agency may approve a former officer or employee to contract with any state agency if the governing body determines that the transaction and the terms of the contract are fair, reasonable, and are in the best interests of the public. The authorization shall be in writing.
Any approval given pursuant to this section is a public record. Each approval shall be filed with the commissioner of human resources and administration, who shall compile the approvals and present them annually for review by the Government Operations and Audit Committee.
Source: SL 2015, ch 30, § 5; SL 2024, ch 1 (Ex. Ord. 24-1), §§ 13, 35, eff. Apr. 8, 2024.
5-18A-17.4. Self-dealing violation as misdemeanor--Removal--Forfeiture of benefit--Contract voidable.
A state officer or employee who knowingly violates the provisions of § 3-16-8 or 5-18A-17 commits malfeasance in office. The state officer or employee shall be removed from office or employment and such person is guilty of a Class 1 misdemeanor. Any benefit to a person or entity derived from the person's knowing violation of § 3-16-8 or 5-18A-17 is subject to forfeiture. Any contract made in violation of § 3-16-8 or 5-18A-17 is voidable by the governing body.
Source: SL 2015, ch 30, § 6.
5-18A-17.5. Specific conflict of interest prohibitions not affected.
Nothing in §§ 5-18A-17 to 5-18A-17.6, inclusive, affects a specific conflict of interest prohibition that applies to specific employees.
Source: SL 2015, ch 30, § 7.
5-18A-17.6. Definitions applicable to §§ 5-18A-17 to 5-18A-17.5.
The terms used in §§ 5-18A-17 to 5-18A-17.5, inclusive, mean:
(1) "State agency," each board, commission, committee, council, department, division, office, task force, or agency of state government. The term, state agency, does not include any authority created by the Legislature or executive order;
(2) "State officer," a person who is elected or appointed to serve a state agency. The term does not include a member of the Legislature, a person who serves without compensation, or a person who is only paid per diem in accordance with § 4-7-10.4;
(3) "Governing body," the Executive Board of the Legislative Research Council, the Supreme Court, the Board of Regents, the Public Utilities Commission, each constitutional officer, the Board of Trustees of the South Dakota Retirement System, the State Investment Council, or the Governor;
(4) "Administer a contract," decision making or substantive influence on the decision making concerning the manner, method, or means of a contract's performance or enforcement such as the ability to terminate, suspend, change terms, or evaluate the counter-party's performance under the contract. The term does not include review and approval of contract documents for matters of style and form or conformity with authorizing legislation or rule, mere clerical tasks such as posting, making, or reconciling payments or accounts under the contract, collecting or reporting fiscal data or other information in relation to the contract's performance, or relaying substantive decisions made by another person or body as to the manner, method, or means of a contract's performance or enforcement.
Source: SL 2015, ch 30, § 8.
5-18A-18. Specifications to promote economy and encourage competition--Circumstances under which brand name or equal specifications permitted.
Any specification shall seek to promote overall economy for the purposes intended and encourage competition in satisfying the purchasing agency's needs, and may not be unduly restrictive. Brand name or equal specifications may be used if the purchasing agency determines in writing that:
(1) No other design or performance specification or qualified products list is available;
(2) Time does not permit the preparation of another form of purchase description, not including a brand name specification;
(3) The nature of the product or the nature of the purchasing agency's requirements makes use of a brand name or equal specification suitable for the procurement; or
(4) Use of a brand name or equal specification is in the purchasing agency's best interests.
Source: SL 2010, ch 31, § 19.
5-18A-19. Requirements for brand name or equal specifications.
Brand name or equal specifications shall seek to designate three, or as many different brands as are practicable, as "or equal" references and shall further state that substantially equivalent products to those designated will be considered for award. Unless the purchasing agency determines in writing that the essential characteristics of the brand names included in the specifications are commonly known in the industry or trade, brand name or equal specifications shall include a description of the particular design, functional, or performance characteristics which are required. If a brand name or equal specification is used in a solicitation, the solicitation shall contain explanatory language that the use of a brand name is for the purpose of describing the standard of quality, performance, and characteristics desired and is not intended to limit or restrict competition.
Source: SL 2010, ch 31, § 20.
5-18A-20. Circumstances under which brand name only specifications permitted.
Brand name specification may be used only if the purchasing agency makes a written determination that only the identified brand name item or items will satisfy the agency's needs. The agency shall seek to identify sources from which the designated brand name item or items can be obtained and shall solicit such sources to achieve whatever degree of price competition is practicable. If only one source can supply the requirement, the procurement shall be made under the sole source procurement provisions of § 5-18A-8.
Source: SL 2010, ch 31, § 21.
5-18A-21. Written contract required--Signatures.
Each contract shall be in writing, shall have the printed name of any individual signing the contract, and shall be signed on behalf of the purchasing agency by the authorized officials. Failure to comply with the requirement for a printed name under this section does not void the terms or purpose of the contract.
Source: SL 2010, ch 31, § 22; SL 2018, ch 46, § 1.
5-18A-22. Procurements exempt from chapters 5-18A through 5-18D.
The provisions of this chapter and chapters 5-18B, 5-18C, and 5-18D do not apply to:
(1) Any highway construction contract entered into by the Department of Transportation;
(2) Any contract for the purchase of supplies from the United States or its agencies or any contract issued by the General Services Administration;
(3) Any purchase of supplies or services, other than professional services, by purchasing agencies from any active contract that has been awarded by any government entity by competitive sealed bids or competitive sealed proposals or from any contract that was competitively solicited and awarded within the previous twelve months;
(4) Any equipment repair contract;
(5) Any procurement of electric power, water, or natural gas; chemical and biological products; laboratory apparatus and appliances; published books, maps, periodicals and technical pamphlets; works of art for museum and public display; medical supplies; communications technologies, computer hardware and software, peripheral equipment, and related connectivity; tableware or perishable foods;
(6) Any supplies, services, and professional services required for externally funded research projects at institutions under the control of the Board of Regents;
(7) Any property or liability insurance or performance bonds, except that the actual procurement of any insurance or performance bonds by any department of the state government, state institution, and state agency shall be made under the supervision of the Bureau of Human Resources and Administration;
(8) Any supplies needed by the Department of Human Services or the Department of Social Services or prison industries for the manufacturing of products;
(9) Any printing involving student activities, conducted by student organizations and paid for out of student fees, at institutions under the control of the Board of Regents. However, nothing in this subdivision exempts, from the requirements of this chapter and chapters 5-18B, 5-18C, and 5-18D, purchases that involve printing for other activities at institutions under the control of the Board of Regents;
(10) Any purchase of surplus property from another purchasing agency;
(11) Any animals purchased;
(12) Any purchase by a school district of perishable food, raw materials used in construction or manufacture of products for resale, or for transportation of students;
(13) Any authority authorized by chapters 1-16A, 1-16B, 1-16G, 1-16H, 1-16J, 5-12, or 11-11;
(14) Any seeds, fertilizers, herbicides, pesticides, feeds, and supplies used in the operation of farms by institutions under the control of the Board of Regents;
(15) Any purchase of supplies for any utility owned or operated by a municipality if the purchase does not exceed the limits established in § 5-18A-14;
(16) For political subdivisions, any contract for asbestos removal in emergency response actions and any contract for services provided by individuals or firms for consultants, audits, legal services, ambulance services, architectural services and engineering, insurance, real estate services, or auction services;
(17) Any purchase of supplies or services from a contract established through a Midwestern Higher Education Compact group purchasing program by a competitive sealed bid or a competitive sealed proposal; or
(18) Any contract concerning the custody, management, purchase, sale, and exchange of fund investments and research by the State Investment Council or Division of Investment.
Source: SL 2010, ch 31, § 23; SL 2011, ch 1 (Ex. Ord. 11-1), § 134, eff. Apr. 12, 2011; SL 2011, ch 2, § 153; SL 2011, ch 31, § 1; SL 2015, ch 35, § 2; SL 2016, ch 40, § 1; SL 2020, ch 4, § 30; SL 2023, ch 17, § 4; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-18A-23. Purchase of foreign meat food products prohibited.
Except for canned meat food products that are not available from a domestic source, no purchasing agency may purchase any meat food products that are the products of any foreign country or that are imported from outside the boundaries of the United States.
Source: SL 2010, ch 31, § 26.
5-18A-24. Grade A milk processors preferred.
Any milk processor licensed pursuant to § 39-6-7, bidding any milk or milk product under a competitive bid contract, shall receive the bid contract if the processor's bid is equal to, or within five percent or less, of any other bidder who is not a licensed processor.
Source: SL 2010, ch 31, § 27.
5-18A-25. Preferences to certain resident businesses, qualified agencies, and businesses using South Dakota supplies or services.
In awarding a contract, if all things are equal, including the price and quality of the supplies or services, a purchasing agency shall give preference:
(1) To a qualified agency if the other equal low bid or proposal was submitted by a business that was not a qualified agency;
(2) To a resident business if the other equal low bid or proposal was submitted by a nonresident business;
(3) To a resident manufacturer if the other equal low bid or proposal was submitted by a resident business that is not a manufacturer;
(4) To a resident business whose principal place of business is located in the State of South Dakota, if the other equal low bid or proposal was submitted by a resident business whose principal place of business is not located in the State of South Dakota; or
(5) To a nonresident business providing or utilizing supplies or services found in South Dakota, if the other equal low bid or proposal was submitted by a nonresident business not providing or utilizing supplies or services found in South Dakota.
In computing price, the cost of transportation, if any, including delivery, shall be considered.
Source: SL 2010, ch 31, § 28.
5-18A-26. Resident bidder preferred over nonresident bidder from state or foreign province that has preference for resident bidders.
A resident bidder shall be allowed a preference on a contract against the bid of any bidder from any other state or foreign province that enforces or has a preference for resident bidders. The amount of the preference given to the resident bidder shall be equal to the preference in the other state or foreign province.
Source: SL 2010, ch 31, § 29.
5-18A-27. List of states with resident bidder preferences.
The Bureau of Human Resources and Administration shall maintain a current list of all states that have a resident bidder preference law and the amount or percent of preference taken by each state. The bureau shall make the list available upon request to any purchasing agency.
Source: SL 2010, ch 31, § 30; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-18A-28. List of supplies, custodial services, and maintenance services provided by qualified agency.
A qualified agency may submit a list of supplies, custodial services, and maintenance services, provided by the agency, to the Bureau of Human Resources and Administration. The bureau shall make the information available to purchasing agencies of the State of South Dakota on a website maintained by the bureau.
Source: SL 2010, ch 31, § 31; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-18A-29. Persons with disabilities.
No provision of this chapter or chapter 5-18B, 5-18C, or 5-18D may be so construed as to prohibit any person with a disability from negotiating a contract for service or supplies or in any other manner doing business with any purchasing agency.
Source: SL 2010, ch 31, § 32.
5-18A-30. Supplies manufactured from recycled or biobased materials.
A purchasing agency may give preference to the purchase of supplies manufactured from recycled or biobased materials if the bids are within five percent of the lowest bid offering nonrecycled or nonbiobased materials.
Source: SL 2010, ch 31, § 33.
5-18A-31. Information regarding preferences to be provided.
Prior to the award of a contract, the purchasing agency may require of each bidder or offeror such information as shall allow the agency to determine whether a bidder or offeror is entitled to a preference or subject to having a preference enforced against it under this chapter and chapters 5-18B, 5-18C, and 5-18D.
Source: SL 2010, ch 31, § 34.
5-18A-32. Procurements utilizing federal funds.
In addition to the provisions of this chapter and chapters 5-18B, 5-18C, and 5-18D, any procurement utilizing federal funds is subject to any federal statutes and regulations governing the use and payment of such funds.
Source: SL 2010, ch 31, § 35.
5-18A-33. Disallowance of noncomplying bid or offer--Contracts in violation void.
Any bidder or offeror who fails to comply with the provisions of this chapter or chapter 5-18B, 5-18C, or 5-18D, or who provides any false information in the submission of any bid or offer is subject to having the bid or offer disallowed by the purchasing agency soliciting the bid or offer. Any contract entered into in violation of this chapter or chapter 5-18B, 5-18C, or 5-18D is null and void.
Source: SL 2010, ch 31, § 36.
5-18A-34. Bureau of Human Resources and Administration to serve as state's central procurement agency.
The Bureau of Human Resources and Administration shall serve as the central procurement agency of the State of South Dakota. Except for the legislative and judicial branches and as otherwise specifically provided in this chapter and chapters 5-18B, 5-18C, and 5-18D, the Bureau of Human Resources and Administration shall procure, or authorize the procurement of all supplies and public improvements for state government. No claim for any such procurement may be paid unless authorization has been issued by the bureau. All state agencies and institutions are responsible for the procurement of services for their respective governmental unit. The governing body of all other purchasing agencies, including the legislative and judicial branches of state government, is responsible for procuring or authorizing the procurement of supplies, services, and public improvements for their respective governmental unit.
Source: SL 2010, ch 31, § 37; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-18A-35. Bond or approved security.
In the procurement of supplies or services, a purchasing agency may require a bond or an approved security to be submitted with any bid or proposal as a guarantee that the bidder will enter into a contract with the purchasing agency. No offeror or bidder may be required to leave the bond or security posted for a longer period than that allowed by § 5-18A-5 if the bid or proposal is not accepted. The bond or approved security of the successful offeror or bidder shall be returned upon the signing of the contract.
Source: SL 2010, ch 31, § 38; SL 2016, ch 39, § 2.
5-18A-36. Performance and payment bond or approved security.
For any public improvement contract, a performance and payment bond is required pursuant to chapter 5-21. For any other contract, a purchasing agency may require a bond or an approved security to be provided by the successful offeror or bidder as a guarantee of faithful performance of the contract. In any case, the bond or approved security of the successful offeror or bidder shall be returned upon satisfactory completion of the contract.
Source: SL 2010, ch 31, § 39.
5-18A-37. Cooperation and agreements with other state and federal purchasing agencies.
Any purchasing agency may enter into agreements with purchasing agents in this or any other state or the United States government under which any of the parties may agree to participate in, administer, sponsor, or conduct purchasing transactions under a joint agreement or contract for the purchase of supplies or contractual services. A purchasing agency may cooperate with purchasing agencies and other interested parties in any other state or the United States government to develop uniform purchasing specifications on a regional or national level to facilitate cooperative interstate purchasing transactions.
Source: SL 2010, ch 31, § 110.
5-18A-38. Environmentally preferable products to be selected.
The Bureau of Human Resources and Administration, any other designated state purchasing agent, and any agency making purchases shall, to the extent practicable, make purchasing selections to maximize the purchase of environmentally preferable products. The Bureau of Human Resources and Administration shall promulgate rules, pursuant to chapter 1-26, to establish specifications, requirements, and certification standards for the purchase for use by state government agencies of environmentally preferable products. The certification standards established by the bureau shall be based on standards established by the United States Environmental Protection Agency's Design for the Environment program, the TerraChoice EcoLogo program, the United States Department of Agriculture's Biopreferred program, the Green Seal program, or any other certification program or comparable data, including life cycle assessment data, approved by the bureau. No rule may prohibit the use of disinfectants, disinfecting cleaners, sanitizers, or any other antimicrobial product regulated by the federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C. Sec. 136 et seq.), as amended to January 1, 2010, if the use is necessary to protect public health and if the use is in accordance with responsible cleaning procedure requirements.
Source: SL 2010, ch 31, § 120; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-18A-39. Reverse auction permitted for certain procurements.
Notwithstanding any other provision of this chapter, a purchasing agency may conduct an online reverse auction for the procurement of supplies or nonprofessional services, if the purchasing agency determines in writing that a reverse auction is appropriate for the specific procurement. No reverse auction may be used to establish contracts for public improvements, professional services, or indefinite quantity supply purchases.
Source: SL 2013, ch 29, § 1.
5-18A-40. Procedures applicable to reverse auctions.
The following procedures apply to the use of an online reverse auction:
(1) The purchasing agency shall pre-qualify bidders to participate in the reverse auction event. The pre-qualification shall be completed by issuing an invitation to qualify. The factors used to determine a vendor qualified for the reverse auction shall be clearly stated in the invitation to qualify. No other factors may be used to qualify a vendor for the reverse auction than those stated in the invitation to qualify;
(2) Public notice shall be given pursuant to § 5-18A-14 of the invitation to qualify;
(3) The purchasing agency shall notify any responding vendor as to whether the vendor has qualified. The purchasing agency may not disclose to the public or other vendors, the name of any vendor that has been invited to the reverse auction until after the reverse auction has occurred;
(4) A bidder shall directly enter bids on the internet to participate in the reverse auction. The purchasing agency may not accept bids via any alternate method;
(5) Any clarification, negotiation, and acceptance of all specifications, requirements, and terms and conditions shall occur before the purchasing agency decides whether to invite a vendor to the reverse auction. After the reverse auction, the purchasing agency may permit changes only if the changes do not affect the justification that was used to eliminate any other vendor from being qualified;
(6) During any reverse auction, the online view of the bids presented to the bidders may not identify who has placed a particular bid. Each bidder may see only the amount of the bid;
(7) If a bidder loses the ability to place bids during an auction for any reason, the auction shall be suspended until all bidders regain the ability to place bids via the internet auction site. If no resolution to the problem is imminent, the reverse auction may be terminated and rescheduled by the purchasing agency. In addition, the auction may be suspended or terminated for any reason by the purchasing agency or the reverse auction service provider. Upon resuming an auction after a suspension, the time remaining shall be the time remaining when the auction was suspended or ten minutes, whichever is greater;
(8) In conducting a reverse auction, the agency may establish an extension activation period, which is the number of minutes before the end of the auction during which, if a bid is received, the auction will be extended by a pre-defined number of additional minutes. The minimum extension activation period that may be used is ten minutes; and
(9) After the reverse auction is completed, the award shall be made in accordance with § 5-18A-5.
Source: SL 2013, ch 29, § 2.
5-18A-41. Bureau of Human Resources and Administration to conduct reverse auction for supplies for state agency.
The Bureau of Human Resources and Administration shall conduct any online reverse auction that is for the procurement of supplies on behalf of any state agency.
Source: SL 2013, ch 29, § 3; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-18A-42. Fair and open competition in government contracts.
Sections 5-18A-43 to 5-18A-47, inclusive, are intended to provide for more economical, nondiscriminatory, neutral, and efficient procurement of construction-related goods and services by this state and political subdivisions of this state as market participants by providing for fair and open competition in government contracts.
Source: SL 2014, ch 40, § 1.
5-18A-43. Terms prohibited in construction contracts.
Subject to the provisions of § 5-18A-45, no governmental unit awarding a contract after July 1, 2014, for the construction, repair, remodel, or demolition of a facility and no construction manager acting on behalf of the governmental unit may include any of the following in a bid specification, project agreement, or other controlling document:
(1) A term that requires or prohibits a bidder, offeror, contractor, or subcontractor from entering into or adhering to an agreement with one or more labor organizations in regard to that project or a related construction project; or
(2) A term that otherwise discriminates against a bidder, offeror, contractor, or subcontractor for becoming, remaining, or refusing to become or remain a signatory to, or for adhering or refusing to adhere to, an agreement with one or more labor organizations in regard to that project or a related construction project.
Source: SL 2014, ch 40, § 2.
5-18A-44. Conditional grant, tax abatement, and tax credit prohibited in construction contracts.
Subject to the provisions of § 5-18A-45, no governmental unit may award a grant, tax abatement, or tax credit that is conditioned upon a requirement that the awardee include a term described in § 5-18A-43 in a contract or document for any construction, improvement, maintenance, or renovation to real property or fixture that is the subject of the grant, tax abatement, or tax credit.
Source: SL 2014, ch 40, § 3.
5-18A-45. Conditions related to agreements with labor organizations.
Nothing in §§ 5-18A-42 to 5-18A-47, inclusive, prohibits a governmental unit from awarding a contract, grant, tax abatement, or tax credit to a private owner, bidder, contractor, or subcontractor who enters into or who is party to an agreement with a labor organization, if being or becoming a party or adhering to an agreement with a labor organization is not a condition for award of the contract, grant, tax abatement, or tax credit, and if the governmental unit does not discriminate against a private owner, bidder, contractor, or subcontractor in the awarding of that contract, grant, tax abatement, or tax credit based upon the status as being or becoming, or the willingness or refusal to become, a party to an agreement with a labor organization.
Nothing in §§ 5-18A-42 to 5-18A-47, inclusive, prohibits a contractor or subcontractor from voluntarily entering into or complying with an agreement entered into with one or more labor organizations in regard to a contract with a governmental unit or funded in whole or in part from a grant, tax abatement, or tax credit from the governmental unit.
Source: SL 2014, ch 40, § 4.
5-18A-46. Exemptions for special circumstances.
The head of a governmental unit may exempt a particular project, contract, subcontract, grant, tax abatement, or tax credit from the requirements of any or all of the provisions of §§ 5-18A-43 and 5-18A-44 only if the governmental unit finds, after public notice and a hearing, that special circumstances require an exemption to avert an imminent threat to public health or safety. A finding of special circumstances under this section may not be based on the possibility or presence of a labor dispute concerning the use of contractors or subcontractors who are nonsignatories to, or otherwise do not adhere to, agreements with one or more labor organizations, or concerning employees on the project who are not members of or affiliated with a labor organization.
Source: SL 2014, ch 40, § 5.
5-18A-47. Construction with National Labor Relations Act.
Nothing in §§ 5-18A-42 to 5-18A-46, inclusive, prohibits an employer or other party from entering into an agreement or engaging in any other activity protected by the National Labor Relations Act, 29 U.S.C. 151 to 169.
Nothing in §§ 5-18A-42 to 5-18A-46, inclusive, interferes with labor relations of parties that are not regulated by the National Labor Relations Act, 29 U.S.C. 151 to 169.
Source: SL 2014, ch 40, § 6.
5-18A-48. Persons involved in grant or contract determinations ineligible for grant or contract--Performance evaluation by recipients and sub-recipients prohibited.
No person involved in the determination of the recipient of a grant or contract from a state agency may be awarded the grant or contract. No recipient or sub-recipient of a grant or contract from a state agency may conduct any external evaluation of the performance of the grant or contract.
Source: SL 2018, ch 44, § 4.
5-18A-49. Forms for acknowledging review of conflict of interest policy and disclosing conflicts.
Any person holding a statewide office as defined in § 12-27-1, and any head of an agency in the executive branch, shall annually sign a form, as created by the Bureau of Human Resources and Administration, acknowledging that the person has reviewed the state conflict of interest policy and disclosing any conflicts that have not previously been disclosed. The Bureau of Human Resources and Administration shall compile the forms and present them annually for review by the Government Operations and Audit Committee.
Source: SL 2018, ch 44, § 5; SL 2024, ch 1 (Ex. Ord. 24-1), § 35, eff. Apr. 8, 2024.
5-18A-50. Prohibited foreign contracts--Certification.
A purchasing agency may not execute a contract that is subject to § 5-18A-14, 5-18A-40, 5-18B-29, 5-18B-44, or 5-18D-17 with a prohibited entity. A purchasing agency may rely on a contractor’s certification, made pursuant to § 5-18A-51, without conducting any further investigative research or inquiry.
Source: SL 2023, ch 18, § 2.
5-18A-51. Prohibited foreign contracts--Notice--Certify on offer--Termination permitted.
A request for proposal, an invitation to bid, or any other document issued by a purchasing agency, with the intent of soliciting responses for the potential award of a contract, must include notice of the certification requirement of this section.
Each bidder or offeror shall, at the time a bid or offer is submitted, or at the time a contract that is subject to § 5-18A-14, 5-18A-40, 5-18B-29, 5-18B-44, or 5-18D-17 is awarded or renewed, certify, in writing, that the bidder or offeror is not a prohibited entity.
If at any time thereafter, any party to a contract subject to § 5-18A-14, 5-18A-40, 5-18B-29, 5-18B-44, or 5-18D-17 becomes a prohibited entity, that party must provide written notification to the purchasing agency. Upon receiving the notification, the agency may terminate the contract.
Source: SL 2023, ch 18, § 3.
5-18A-52. Prohibited foreign contracts--Grounds for waiver.
The commissioner of the Bureau of Human Resources and Administration, or the commissioner's designee, or the governing board of a unit of local government, as applicable, may waive the prohibition set forth in § 5-18A-50 and the certification required in § 5-18A-51, except as prohibited by federal law, if:
(1) Compliance is not possible;
(2) The supplies or services subject to the contract are unique or would be otherwise unavailable; or
(3) There is no other market participant.
Source: SL 2023, ch 18, § 4; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-18A-53. Prohibited foreign contracts--False certification--Cause to suspend or debar.
Any certification that falsely indicates a person is not a prohibited entity at the time of certification, and any failure to provide written notification to the purchasing agency that a person has become a prohibited entity as required by § 5-18A-51, is cause to suspend or debar a business under § 5-18D-12.
Source: SL 2023, ch 18, § 5.
CHAPTER 5-18B
PROCUREMENT OF PUBLIC IMPROVEMENTS
5-18B-1 Plans and specifications--Advertisement--Availability.
5-18B-2 Certified check or cashier's check for percentage of bid or bid bond required.
5-18B-3 Check or bid bond requirement--Waiver.
5-18B-4 Surety bond or insurance contract required in bid, in contract, or by law.
5-18B-5 Negotiations if lowest responsive and responsible bid exceeds final estimated project cost.
5-18B-6 Certification regarding labor provided by nonresident subcontractors.
5-18B-7 Contractor's use tax liability.
5-18B-8 Forfeited funds accrue to funds provided for construction.
5-18B-9 Time limits--Return of checks--Return or destruction of bid bonds.
5-18B-10 Plans and specifications prepared by architect or engineer.
5-18B-11 Progress payments--Retention of funds from final payment--Interest.
5-18B-12 Bond or deposit of securities in lieu of retention of sums due for work performed.
5-18B-13 Occupancy before completion and acceptance.
5-18B-14 Project superintendent--Installment payments--Final payment.
5-18B-15 Architect or engineer may not be contractor or construction manager on project exceeding one hundred thousand dollars--Exemption.
5-18B-16 Unemployment compensation.
5-18B-17 Contractor's excise tax license.
5-18B-18 Contributions and interest due the Department of Labor and Regulation.
5-18B-19 Amendment or change order to existing contract.
5-18B-20 Design-build contracts.
5-18B-21 Design-builder to be authorized.
5-18B-22 Subletting of design services.
5-18B-23 Subletting construction or other services.
5-18B-24 Contracts with unlicensed or unqualified design-builder permitted if services sublet to licensed or qualified person.
5-18B-25 Request for proposals to contain performance criteria--Qualifications of developer.
5-18B-26 Performance criteria developer and design builder to perform separate roles.
5-18B-27 Performance criteria developer to be purchasing agency employee or engaged in accordance with statutorial procedures--Delegation.
5-18B-28 Development of performance criteria.
5-18B-29 Elements of design-build request for proposals--Time for mailing to pre-qualified design-builders.
5-18B-30 Design-build request not to be detailed--Drawings--Specifications--Standards.
5-18B-31 Pre-qualification of design-builders--Elements of request for qualifications.
5-18B-32 Deposit or bond submitted with proposal--Forfeiture.
5-18B-33 Proposals to be sealed--Contents.
5-18B-34 Confidentiality of proposals.
5-18B-35 Review and opinion of performance criteria developer--Submission to governing body.
5-18B-36 Acceptance of a proposal--Evaluation criteria scores.
5-18B-37 Rejection of design-build proposals--Solicitation of new proposals.
5-18B-38 Withdrawal of design-build proposal.
5-18B-39 Construction manager engagement.
5-18B-40 Services of construction manager.
5-18B-41 Manager-agent.
5-18B-42 Manager-at-risk.
5-18B-43 Criteria for construction manager engagement.
5-18B-44 Criteria for construction manager-at-risk engagement.
5-18B-45 Active involvement of licensed design professional required.
5-18B-46 Improvement projects that rely on federal funding from FAA.
5-18B-1. Plans and specifications--Advertisement--Availability.
If a contract is for the construction of a public improvement, the required advertisement shall state where the plans and specifications may be examined. The plans and specifications for the construction of any public improvement shall be and remain on file in the office of the purchasing agency at all times from the beginning of the publication of the advertisement for bids until the completion of the public improvement. The purchasing agency shall, upon request, furnish at least one copy of the plans and specifications, without charge, to each contractor resident in South Dakota who intends, in good faith, to bid upon the public improvement. The copy shall be available at the date of the first publication of the advertisement for bids. The purchasing agency may require the return of the copy at the time of the opening of the bids.
Source: SL 2010, ch 31, § 40.
5-18B-2. Certified check or cashier's check for percentage of bid or bid bond required.
If the invitation for bids is for the construction of a public improvement, each bid shall contain a certified check or a cashier's check, for five percent of the amount of the bid. Such check shall be certified or issued by either a state or a national bank and payable to the purchasing agency or to an officer of the purchasing agency letting the contract and inviting bids. In lieu of a check, a bid may contain a bid bond for ten percent of the amount of the bid. Such bond to be issued by a surety authorized to do business in this state payable to the purchasing agency, as a guaranty that the bidder will enter into a contract with the purchasing agency, its board or officers thereof, in accordance with the terms of the letting and bid in case the bidder be awarded the contract.
Source: SL 2010, ch 31, § 41.
5-18B-3. Check or bid bond requirement--Waiver.
Notwithstanding the provisions of § 5-18B-2, the requirement of a bid bond, certified or cashier's check, cash, or other security may be waived by the purchasing agency if the bid submitted does not exceed the limit established pursuant to § 5-18A-14 for a public improvement.
Source: SL 2010, ch 31, § 42; SL 2021, ch 33, § 1.
5-18B-4. Surety bond or insurance contract required in bid, in contract, or by law.
No purchasing agency may, directly or indirectly, require or direct a bidder on any public improvement contract that is about to be or has been competitively bid to obtain from a particular insurer or insurance producer any surety bond or contract of insurance required in the bid or contract or required by any law, ordinance, or rule. However, the surety insurer shall be an authorized insurer under Title 58. Nothing in this section prevents any purchasing agency from exercising the right to approve or reject a surety bond or contract of insurance as to its form or sufficiency.
Source: SL 2010, ch 31, § 43.
5-18B-5. Negotiations if lowest responsive and responsible bid exceeds final estimated project cost.
If the lowest responsive and responsible bid for a public improvement project exceeds the final estimated project cost, the Bureau of Human Resources and Administration, acting on behalf of the state, or any other purchasing agency may negotiate with that low bidder for the construction of a public improvement at the most advantageous price.
Source: SL 2010, ch 31, § 44; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-18B-6. Certification regarding labor provided by nonresident subcontractors.
Prior to execution of a public improvement contract, a successful bidder shall certify:
(1) That no more than twenty percent of the cost of labor included in the contract is being provided by nonresident subcontractors; or
(2) That more then twenty percent of the cost of labor included in the contract is being provided by nonresident subcontractors because resident contractors are not available and at competitive prices.
The bidder shall also provide any information requested by the purchasing agency to verify the certification.
Source: SL 2010, ch 31, § 45.
5-18B-7. Contractor's use tax liability.
If a purchasing agency is to supply tangible personal property to be used in performance of the contract and the personal property is taxable to the contractor under § 10-46-5, the specifications or notice to bidders shall state the purchase price or fair market value of the tangible personal property, whichever is the greater. The stated amount shall be the basis for determining the contractor's liability for tax.
Source: SL 2010, ch 31, § 46.
5-18B-8. Forfeited funds accrue to funds provided for construction.
Any funds forfeited by a bidder or surety shall accrue to the funds provided for construction of the public improvement.
Source: SL 2010, ch 31, § 47.
5-18B-9. Time limits--Return of checks--Return or destruction of bid bonds.
No bidder on a public improvement contract may be required, either in the invitation for bids or otherwise, to leave a certified check or cashier's check, or bid bond, posted for a longer period than allowed in § 5-18A-5 if the bid is not accepted. The check or bid bond of the successful bidder shall be returned upon the execution of the contract and surety hereafter provided for. The checks of all unsuccessful bidders shall be, by the purchasing agency, immediately returned to the respective makers thereof and the bid bonds of all unsuccessful bidders shall be, by the purchasing agency, immediately destroyed. No more than forty-five days may elapse between the opening of the bids and either the acceptance of the bid of the lowest responsible bidder or the rejection of all of the bids presented.
Source: SL 2010, ch 31, § 48; SL 2016, ch 39, § 3; SL 2019, ch 48, § 1.
5-18B-10. Plans and specifications prepared by architect or engineer.
If a contract is based upon plans and specifications prepared by an architect or engineer, the contract's terms and conditions shall comply with the provisions provided in the "AIA Document A201, General Conditions of the Contract for Construction," by the American Institute of Architects in effect on January 1, 2020, the "ConsensusDOCS 200 Standard Agreement and General Conditions Between Owner and Contractor," by ConsensusDOCS LLC in effect January 1, 2020, or the "Standard General Conditions of the Construction Contract," 1990 Edition, by the Engineer's Joint Contract Documents Committee, in effect January 1, 2020, except when in conflict with the laws of this state. However, the purchasing agency may modify or delete, on a contract by contract basis, any portion of the "AIA Document A201, General Conditions of the Contract for Construction," "ConsensusDOCS 200 Standard Agreement and General Conditions Between Owner and Contractor," or the "Standard General Conditions of the Construction Contract."
Source: SL 2010, ch 31, § 49; SL 2020, ch 23, § 1.
5-18B-11. Progress payments--Retention of funds from final payment--Interest.
The contract may permit progress payments, but an amount necessary to complete the improvement shall be retained from the final payment until the contract is executed in full and the public improvement completed to the satisfaction and acceptance of the purchasing agency. However, if the contractor has furnished the purchasing agency all required records and reports and a final inspection has been made, the purchasing agency shall pay to the contractor interest as set by the governing body at a rate of not less than the category E rate of interest as established by § 54-3-16 on the amounts retained and on the final payment due the contractor beginning thirty days after the work under the contract has been completed, as evidenced either by the completion date established by the architect's or engineer's letter of acceptance or by the use and occupancy of the public improvement. The interest shall continue until the date when payment is tendered to the contractor unless delay in payment has been the result of federal participation in the contract in which event interest may not begin until thirty days after payment by the federal authority involved. If a portion of a progress payment is retained, other than the final payment, the purchasing agency shall pay to the contractor interest as set by the purchasing agency at a rate of not less than the category E rate of interest as established by § 54-3-16 on the amount retained beginning thirty days after the contractor has furnished the purchasing agency with all required records and reports and a progress inspection.
Source: SL 2010, ch 31, § 50.
5-18B-12. Bond or deposit of securities in lieu of retention of sums due for work performed.
The purchasing agency may include in any contract for a public improvement provisions for a bond or the deposit of securities in lieu of sums retained from payments due a contractor for work performed pursuant to the terms of the contract. The contract document shall state the types of bond or securities to be accepted and the procedural requirements for the deposits.
Source: SL 2010, ch 31, § 51.
5-18B-13. Occupancy before completion and acceptance.
If a purchasing agency elects to use and occupy the public improvement before acceptance, the purchasing agency shall pay all amounts due under the contract except double the amount that the architect or engineer estimates to be necessary to complete the improvement in accordance with the plans and specifications or one percent of the contract price, or in any event not less than three hundred dollars. No interest may commence until thirty days after the work has been fully completed.
Source: SL 2010, ch 31, § 52.
5-18B-14. Project superintendent--Installment payments--Final payment.
The purchasing agency may appoint a competent superintendent who may be the architect or engineer furnishing the plans and specifications for the public improvement. The superintendent shall report to the purchasing agency or board every thirty days as to the progress and character of the work done by the contractor. Upon the reports of the superintendent, the purchasing agency shall make payments promptly to the contractor during the process of construction to the extent provided by the contract based on the value of the work done and materials furnished. The payments shall be divided into such installments as the board and the contractor may agree upon at the time of entering into the contract, and which shall be included in and be a part of the terms of the contract. No payment, however, constitutes an acceptance, in whole or in part, by the purchasing agency prior to making of the final payment and acceptance in full completion of the contract. Final payment of any sums due to the contractor shall be made within thirty days after the completion and acceptance of the public improvement by the purchasing agency.
Source: SL 2010, ch 31, § 53.
5-18B-15. Architect or engineer may not be contractor or construction manager on project exceeding one hundred thousand dollars--Exemption.
No person, firm, or corporation may act as architect or engineer and also as contractor or construction manager on any public improvement project if the amount to be expended exceeds one hundred thousand dollars. Any public improvement of an emergency nature that affects the public health and safety of the state and is funded through the use of an emergency appropriation or special appropriation, and any full-service firm that specializes in the design, fabrication, or installation of cultural or educational exhibits is exempt from this section.
Source: SL 2010, ch 31, § 54; SL 2017, ch 45, § 1.
5-18B-16. Unemployment compensation.
Each purchasing agency, on entering into a contract for a public improvement, shall provide in the contract that the contractor is required to pay the Department of Labor and Regulation of South Dakota all contributions and interest due under the provisions of chapter 61-5, on wages paid to individuals employed in performance of the contract.
Source: SL 2010, ch 31, § 55; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.
5-18B-17. Contractor's excise tax license.
No purchasing agency may award any contract for the construction of any public improvement unless the purchasing agency has verified with the Department of Revenue that the contractor has a contractor's excise tax license pursuant to chapter 10-46A or 10-46B.
Source: SL 2010, ch 31, § 56; SL 2011, ch 1 (Ex. Ord. 11-1), § 35, eff. Apr. 12, 2011.
5-18B-18. Contributions and interest due the Department of Labor and Regulation.
Before final payment may be made on any contract for public improvement, the purchasing agency awarding the contract shall require the contractor to furnish a certificate from the Department of Labor and Regulation that all contributions and interest due to the Department of Labor and Regulation in the performance of the contract have been paid.
Source: SL 2010, ch 31, § 57; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.
5-18B-19. Amendment or change order to existing contract.
Any amendment or change order to an existing contract for construction, reconstruction, or remodeling of a public improvement does not need to be bid if:
(1) The contract contains unit prices for the same type or class of work;
(2) The change or extra work is necessitated by circumstances related to soils, utilities, or unknown conditions directly affecting the performance of the work that were not reasonably foreseeable at the time the underlying contract was let and the change or extra work is necessary to the completion of the public improvement; or
(3) The sum of the proposed amendment or change order plus the sum of all other prior unbid amendments or change orders, exclusive of change orders issued under subdivisions (1) and (2) of this section, does not exceed the following:
(a) For contracts not more than five hundred thousand dollars, the greater of twenty-five thousand dollars or fifteen percent of the base contract;
(b) For contracts exceeding five hundred thousand dollars but not more than two million five hundred thousand dollars, the greater of seventy-five thousand dollars or ten percent of the base contract; and
(c) For contracts exceeding two million five hundred thousand dollars, the greater of two hundred fifty thousand dollars or five percent of the base contract.
Source: SL 2010, ch 31, § 58.
5-18B-20. Design-build contracts.
A purchasing agency may enter into design-build contracts for public improvements, if the following conditions are met:
(1) The purchasing agency shall, prior to issuing any design-build request for proposals, establish and publish procedures for the solicitation and award of design-build contracts. The Bureau of Human Resources and Administration shall establish the procedures for the state. The procedures shall include the following:
(a) The procedure to select or designate a performance criteria developer utilizing a qualification based process and the procedure to prepare performance criteria;
(b) The procedures for the preparation and contents of a design-build request for proposals;
(c) The procedure and standards to be used to qualify or pre-qualify design-builders;
(d) The procedures for preparing and submitting proposals;
(e) The procedures for evaluating proposals;
(f) The procedures for negotiations between the purchasing agency and those submitting proposals prior to the acceptance of a proposal. The procedures shall contain safeguards to preserve confidential information and proprietary information supplied by those submitting proposals, consistent with § 5-18B-34;
(g) The procedures for awarding and executing design-build contracts;
(h) The procedures for awarding design-build contracts in the event of public emergencies as defined in § 5-18A-9; and
(i) The procedures for acting on formal protests relating to the solicitation or award of design-build contracts;
(2) The purchasing agency shall, for each public improvement under this section, make a determination that it is in the best interest of the public to enter into a design-build contract to complete the public improvement. The determination to utilize design-build and the basis for the determination shall be recorded in the project file or the minutes of the meeting of the governing board of the purchasing agency. In making this determination, design-build projects shall meet one or more of the following criteria:
(a) The purchasing agency requires a project design and construction time line that is faster than the traditional design/bid/build process would allow;
(b) The complexity of the project requires close coordination of design and construction expertise or an extreme amount of coordination;
(c) The purchasing agency requires early cost commitments; or
(d) The project can be defined at an early stage and the purchasing agency is able to specify all requirements; and
(3) The purchasing agency shall follow the procedures of other laws governing public improvement construction contracts to the extent such laws are compatible with the use of design-build contracts.
Source: SL 2010, ch 31, § 59; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-18B-21. Design-builder to be authorized.
No design-builder may do business in this state unless authorized as either an architect, engineer, or general contractor.
Source: SL 2010, ch 31, § 60.
5-18B-22. Subletting of design services.
A design-builder may sublet responsibility for professional design services to any person licensed and registered to provide professional design services in this state. Nothing in this section limits or eliminates the responsibility or liability of any person registered pursuant to chapter 36-18A, on a design-build project to the purchasing agency or other third parties under existing law.
Source: SL 2010, ch 31, § 61.
5-18B-23. Subletting construction or other services.
A design-builder may sublet responsibility for construction or other services to persons registered, licensed, or otherwise qualified to provide those services in this state.
Source: SL 2010, ch 31, § 62.
5-18B-24. Contracts with unlicensed or unqualified design-builder permitted if services sublet to licensed or qualified person.
A design-builder may contract with the purchasing agency to provide professional services or construction services for which the design-builder is not licensed, registered, or qualified to perform, as long as the design-builder sublets all such services required under the design-build contract to a licensed, registered, or otherwise qualified person.
Source: SL 2010, ch 31, § 63.
5-18B-25. Request for proposals to contain performance criteria--Qualifications of developer.
Any request for proposals shall contain performance criteria developed by a performance criteria developer and approved by the purchasing agency. For projects not exempted under chapter 36-18A from using a registered design professional, the performance criteria developer shall be a design professional registered under chapter 36-18A. For projects exempt under chapter 36-18A from using a registered design professional, the performance criteria developer shall be hired on the basis of qualifications related to projects of similar scope.
Source: SL 2010, ch 31, § 64.
5-18B-26. Performance criteria developer and design builder to perform separate roles.
The performance criteria developer may not submit a proposal to enter into the design-build contract and the design-builder may not delegate or contract services under the design-build contract to the performance criteria developer.
Source: SL 2010, ch 31, § 65.
5-18B-27. Performance criteria developer to be purchasing agency employee or engaged in accordance with statutorial procedures--Delegation.
The performance criteria developer shall be either an employee of the purchasing agency or shall be engaged in accordance with statutorial procedures for contracting with professional services. With the approval of the purchasing agency, the developer may delegate or contract for the development of specific aspects of the design criteria to other consultants. The performance criteria developer may be retained at the purchasing agency's option through to the completion of the design-build contract.
Source: SL 2010, ch 31, § 66.
5-18B-28. Development of performance criteria.
The purchasing agency, in consultation with the performance criteria developer, shall determine the scope and level of detail required for the performance criteria. The performance criteria shall be detailed enough to permit a person to submit a proposal in accordance with the design-build request for proposals, given the nature of the public project and the level of design to be provided in the proposal.
Source: SL 2010, ch 31, § 67.
5-18B-29. Elements of design-build request for proposals--Time for mailing to pre-qualified design-builders.
After a minimum of three design-builders have been pre- qualified in accordance with § 5-18B-31, a design-build request for proposals shall be mailed to each pre-qualified design-builder. The minimum number of pre-qualified design-builders is not required for any improvement project that is complex in nature, requires close coordination of design and construction expertise, and does not require significant structural changes, additions, reconstruction, or new construction. The design-build request for proposals shall be prepared for each design-build contract containing the following elements:
(1) The identity of the purchasing agency which will award the design-build contract and the identity of the performance criteria developer;
(2) The procedures to be followed for submitting proposals, the criteria for evaluation of a proposal and its relative weight, and the procedures for making awards;
(3) The proposed terms and conditions for the design-build contract;
(4) The performance criteria, which shall include the following:
(a) The owners preliminary program of space needs and special requirements;
(b) Performance standards for materials and equipment; and
(c) Minimum system requirements and efficiencies;
(5) A description of the drawings, specifications, or other submittals to be submitted with the proposal, with guidance as to the form and level of completeness of the drawings, specifications, or submittals that is acceptable;
(6) A schedule for planned commencement and completion of the design-build contract;
(7) Budget limits for the design-build contract;
(8) Affirmative action, disadvantaged business, or set-aside goals or requirements for the design-build contract, if any;
(9) Requirements for performance and payment bonds, and insurance. These requirements shall meet the requirements of § 5-21-1;
(10) The compensation, if any, to be given to design-builders submitting proposals who are not awarded the project;
(11) Whether project financing is in place;
(12) A schedule for payments to the design-builder;
(13) Site identification and geotechnical information if the site is owner-provided;
(14) Location of existing utilities and their capacity if the site is owner-provided; and
(15) Warranty and guarantee requirements.
Source: SL 2010, ch 31, § 68.
5-18B-30. Design-build request not to be detailed--Drawings--Specifications--Standards.
No design-build request for proposals may include detailed designs or detailed drawings prepared by the criteria developer. The request may, however, include drawings of existing conditions and any preliminary conceptual sketches necessary to illustrate the information required by subdivision 5-18B-29(4). Each conceptual drawing shall contain the minimum information necessary to convey the requirements. No design-build request for proposals may include detailed construction specifications. Any design and construction standards in the request for proposals shall be performance standards only.
Source: SL 2010, ch 31, § 69.
5-18B-31. Pre-qualification of design-builders--Elements of request for qualifications.
A purchasing agency shall pre-qualify design-builders for design-build contracts by advertising its request for qualifications in accordance with § 5-18A-14. A request for qualifications shall contain the following elements:
(1) The identity of the purchasing agency;
(2) A description of the proposed public improvement;
(3) Budget limits for the proposed public improvement;
(4) The requirements the design-builder will be required to have; and
(5) The criteria and their relative weight for prequalification.
Source: SL 2010, ch 31, § 70.
5-18B-32. Deposit or bond submitted with proposal--Forfeiture.
Any proposal, submitted pursuant to this section, shall be accompanied by a deposit or bond meeting the requirements of § 5-18B-2. The deposit or security may be forfeited if the proposal is accepted but the design-builder fails to execute the design-build contract.
Source: SL 2010, ch 31, § 71.
5-18B-33. Proposals to be sealed--Contents.
Any proposal shall be sealed and may not be opened until expiration of the time established for making proposals as set forth in the design-build request for proposals. To the extent required by the request for proposals, any proposal shall identify each person to whom the design-builder proposes to sublet obligations under the design-build contract. At a minimum, any proposal shall identify each person to whom the design-builder proposes to sublet any design obligations or general construction obligations. Any person so identified may not be replaced without the approval of the purchasing agency. Any proposal shall establish a cost of the design-build contract that may not be exceeded if the proposal is accepted without change. The maximum cost in the proposal may be converted to fixed prices by negotiated agreement between the purchasing agency and the selected design-builder.
Source: SL 2010, ch 31, § 72.
5-18B-34. Confidentiality of proposals.
Until a proposal is accepted, the drawings, specifications, and other information in the proposal remain the property of the person making the proposal. The purchasing agency shall make reasonable efforts to maintain the secrecy and confidentiality of any proposal and all information contained in any proposal and may not disclose any proposal or the information contained in a proposal to the design-builder's competitors. The purchasing agency may not disclose, except as may be permitted pursuant to chapter 1-27, confidential and proprietary information contained in any proposal to the public until such time as the purchasing agency takes final action to accept a proposal.
Source: SL 2010, ch 31, § 73.
5-18B-35. Review and opinion of performance criteria developer--Submission to governing body.
Once received, any proposal shall be submitted to the performance criteria developer for review. Clarifications may be required to ensure conformance of any proposal with the performance criteria. In seeking clarifications, the performance criteria developer may not reveal any aspect of any design-builder's proposal to any other design-builder. No proposal may be considered until the performance criteria developer issues a written opinion that the proposal is consistent with the performance criteria. Once the performance criteria developer has issued such an opinion, the proposal shall be submitted to the governing body of the purchasing agency for review and evaluation. No proposal or design-build contract may be accepted unless the purchasing agency determines there was adequate competition for such contract.
Source: SL 2010, ch 31, § 74.
5-18B-36. Acceptance of a proposal--Evaluation criteria scores.
After obtaining and evaluating proposals according to the criteria and procedures set forth in the design-build request for proposals, a purchasing agency may accept the proposal it considers most advantageous to the purchasing agency. Acceptance of a proposal shall be by written notice to the design-builder which submitted the accepted proposal. At the same time notice of acceptance is delivered, the purchasing agency shall also inform, in writing, the other design-builders that their proposals were not accepted. Unless all proposals are rejected, a detailed breakdown of the evaluation criteria scores for each proposal received shall be made available to the public after signature execution of the design-build contract. The contract for development of performance criteria shall terminate if a contract is awarded to the design-builder.
Source: SL 2010, ch 31, § 75.
5-18B-37. Rejection of design-build proposals--Solicitation of new proposals.
The purchasing agency may reject any and all design-build proposals. The purchasing agency may solicit new proposals using the same or different performance criteria, budget constraints, or qualifications.
Source: SL 2010, ch 31, § 76.
5-18B-38. Withdrawal of design-build proposal.
Any design-build proposal may be withdrawn by the proposer for any reason at any time prior to acceptance.
Source: SL 2010, ch 31, § 77.
5-18B-39. Construction manager engagement.
Any purchasing agency may engage a construction manager if planning, designing, or constructing a public improvement, or if improving, altering, or repairing a public improvement. However, no purchasing agency is required to engage a construction manager.
Source: SL 2010, ch 31, § 78.
5-18B-40. Services of construction manager.
Construction management services provided in the planning and design phases of a public improvement project may include:
(1) Services provided in the planning and design phases of a public improvement project including the following:
(a) Consulting with, advising, assisting, and making recommendations to the public corporation and architect or engineer on all aspects of planning for project construction;
(b) Reviewing all plans and specifications as they are being developed and making recommendations with respect to construction feasibility, availability of material and labor, time requirements for procurement and construction, and projected costs;
(c) Making, reviewing, and refining budget estimates based on the public corporation's program and other available information;
(d) Making recommendations to the public corporation and the architect or engineer regarding the division of work in the plans and specifications to facilitate bidding and awarding of contracts;
(e) Soliciting the interest of capable contractors and assisting the public corporation in taking bids on the project;
(f) Analyzing the bids received and awarding contracts; and
(g) Preparing and monitoring a progress schedule during the design phase of the project and preparation of a proposed construction schedule; and
(2) Services provided in the construction phase of the public improvement project including the following:
(a) Maintaining competent supervisory staff to coordinate and provide general direction of the work and progress of the contractors on the project;
(b) Observing the work as it is being performed for general conformance with working drawings and specifications;
(c) Establishing procedures for coordinating among the public corporation, architect or engineer, contractors, and construction manager with respect to all aspects of the project and implementing labor policy in conformance with the requirements of the public corporation's policy and making recommendations;
(d) Reviewing and processing all applications for payment by involved contractors and material suppliers in accordance with the terms of the contract;
(e) Making recommendations for and processing requests for changes in the work and maintaining records of change orders;
(f) Scheduling and conducting job meetings to ensure orderly progress of the work;
(g) Developing and monitoring a project progress schedule, coordinating and expediting the work of all contractors, and providing periodic status reports to the owner and the architect and engineer; and
(h) Establishing and maintaining a cost control system and conducting meetings to review costs.
Source: SL 2010, ch 31, § 79.
5-18B-41. Manager-agent.
No construction manager-agent may contract directly with any contractor or supplier for the project.
Source: SL 2010, ch 31, § 80.
5-18B-42. Manager-at-risk.
The construction manager-at-risk shall directly contract with subcontractors and suppliers for the project.
Source: SL 2010, ch 31, § 81.
5-18B-43. Criteria for construction manager engagement.
Unless the construction manager-agent is an employee of the purchasing agency and provides the construction management services pursuant to such employment, no purchasing agency may engage the services of a construction manager except as follows:
(1) The purchasing agency shall first make the following determinations:
(a) That it is in the public interest to utilize the services of a construction manager; and
(b) That the construction management services would not unreasonably duplicate and would be in addition to the normal scope of separate architect or engineer contracts;
(2) Notwithstanding any other provisions of this chapter, no construction manager may contract to perform actual construction on the project, except as follows:
(a) The construction manager may perform general conditions of the construction contract as required by the owner;
(b) The construction manager is a construction manager-at-risk and was solicited through a qualification-based request for proposals method of procurement as provided in § 5-18B-44 and the construction manager-at-risk, for any actual construction contracted by the construction manager-at-risk to be performed on the project, provides payment and performance bonds and competitively bids the work as required by any statute governing bidding and bonding for public improvement projects;
(c) Pursuant to a contract awarded on an emergency basis, pursuant to § 5-18A-9; or
(d) Pursuant to a contract negotiated pursuant to subdivision 5-18A-5(9); and
(3) No person, firm, or corporation may act as a construction manager-agent and also as a contractor on any public improvement, except as follows:
(a) Pursuant to a contract awarded on an emergency basis, pursuant to § 5-18A-9; or
(b) Pursuant to a contract negotiated pursuant to subdivision 5-18A-5(9).
Source: SL 2010, ch 31, § 82.
5-18B-44. Criteria for construction manager-at-risk engagement.
Each qualification based request for proposals required by subsection 5-18B-43(2)(b) to enter into a construction manager-at-risk services contract where the construction manager-at-risk intends to actually perform construction on the project, shall meet the following criteria:
(1) The purchasing agency shall, prior to issuing any request for proposals to enter in a construction management services contract, establish and publish procedures for the solicitation and award of such contracts, which procedures shall include the following:
(a) The procedures and standards to be used to qualify construction managers;
(b) The procedures for preparing and submitting proposals;
(c) The procedures for evaluating proposals;
(d) The procedures for negotiations between the purchasing agency and those submitting proposals prior to the acceptance of a proposal. The procedures shall contain safeguards to preserve the confidential information and proprietary information supplied by those submitting proposals; and
(e) The procedures for awarding construction management services contracts;
(2) A request for proposals to enter into a construction management services contract shall contain the following elements:
(a) The identity of the purchasing agency;
(b) A description of the proposed public improvement;
(c) A description of the qualifications the construction manager will be required to have;
(d) The procedures to be followed for submitting proposals, the criteria for evaluation of a proposal and its relative weight, and procedures for making awards;
(e) The proposed terms and conditions for the construction management services contract, including a description of the scope of services to be provided;
(3) Notice of any request for proposals shall be advertised in accordance with the provisions of § 5-18A-14;
(4) After obtaining and evaluating proposals, a purchasing agency may accept the proposal it considers the most advantageous to the purchasing agency. Acceptance of a proposal shall be by written notice to the construction manager submitting the accepted proposal, and by simultaneously notifying in writing the other construction managers that their proposals were not accepted; and
(5) The purchasing agency shall reserve the right to reject any or all proposals submitted.
Source: SL 2010, ch 31, § 83.
5-18B-45. Active involvement of licensed design professional required.
Each contract for a public improvement shall have a licensed design professional actively involved in the project from the start of design through final completion as required by chapter 36-18A.
Source: SL 2010, ch 31, § 84.
5-18B-46. Improvement projects that rely on federal funding from FAA.
If an invitation for a bid for airport improvements states that the requirement the bid be awarded within thirty days has been waived, the provisions of subdivision 5-18A-5(7) and § 5-18B-9 do not apply. If the bid award time exceeds thirty days, any bid may be withdrawn by the bidder without jeopardizing the bid bond. This section only applies to any improvement project that relies on federal funding from the federal aviation administration.
Source: SL 2015, ch 51, § 1.
5-18C-1
Contract for transportation of students.
5-18C-2
Contract for services of school food service management company.
5-18C-3
Public sale or auction--Performance bond--Competitive quotations--Records to be
retained.
5-18C-4
Water, sanitary sewer, and storm sewer trunk lines or mains, sewer collection
systems, streets, and regional storm sewer detention ponds installed at developer's
expense.
5-18C-5
County highway system and secondary highways--Dams.
5-18C-6
Fuel purchased by local government units.
5-18C-7
Municipal garbage disposal contracts and supply contracts.
5-18C-8
Purchases from state contract list or below state contract price.
5-18C-1. Contract for transportation of students.
No contract for the transportation of students may exceed five years. Specific provisions of the contract may be renegotiated during the term of the contract if guidelines for making changes are in the contract. Any change made during the term of the contract shall be reported in the school board minutes.
Source: SL 2010, ch 31, § 85.
5-18C-2. Contract for services of school food service management company.
No contract for the services of a local school food service management company may exceed one year. An original contract for the services of a school food service management company may be renewed annually no more than four times consecutively following the original contract. Both bid and contract shall specify that the contract may be renewed, but the local school is not required to renew the contract. Specific provisions of the original contract may be renegotiated prior to renewal if guidelines for making changes are in the original contract. The school board shall record in its minutes any changes made during the term of a food service management contract or renewal.
Source: SL 2010, ch 31, § 86.
5-18C-3. Public sale or auction--Performance bond--Competitive quotations--Records to be retained.
The governing board of a unit of local government shall be exempted from the provisions of this chapter and chapters 5-18A, 5-18B, and 5-18D if it is able to purchase supplies at a substantial savings at a public sale or auction. Any performance bond required by § 5-21-1 may be waived on items purchased for less than ten thousand dollars at a public sale or auction. The governing board shall contact and attempt to obtain competitive quotations from at least three suppliers of identical or similar supplies. The board may authorize an agent to attend a sale or auction and expend an amount not in excess of eighty percent of the average of the quotations received. A record of the names of the suppliers, the quotations received, and the procurement procedures used in purchasing shall be documented, noted in the minutes, and retained on file by the governing board.
Source: SL 2010, ch 31, § 87.
5-18C-4. Water, sanitary sewer, and storm sewer trunk lines or mains, sewer collection systems, streets, and regional storm sewer detention ponds installed at developer's expense.
If a municipality requires a developer to install water, sanitary sewer, and storm sewer trunk lines or mains; sewer collection systems; or streets at the expense of the developer and the municipality requires the size of the trunk line or main, sewer collection systems, or streets to be larger than the developer's requirements, the price difference paid by the municipality and as determined by a licensed engineer's estimate is exempt from the provisions of this chapter and chapters 5-18A, 5-18B, and 5-18D.
If a developer installs a regional storm sewer detention pond ahead of a municipality's schedule at the expense of the developer, the price of the pond construction paid by the municipality and based on certified quantities provided by a licensed engineer is exempt from the provisions of this chapter and chapters 5-18A, 5-18B, and 5-18D.
Source: SL 2010, ch 31, § 88; SL 2012, ch 45, § 1.
5-18C-5. County highway system and secondary highways--Dams.
Nothing in this chapter or chapter 5-18A, 5-18B, 5-18D, or 5-21 may be so construed as to prevent counties or townships from constructing or maintaining the county highway system and any secondary highways by means of drags, road planers, tractors, and other approved mechanical devices owned by said counties or townships. Nothing in this chapter or chapter 5-18A, 5-18B, 5-18D, or 5-21 may be construed to prevent the construction of dams in connection with water conservation projects if the cost of materials used does not exceed the total cost of twenty-five hundred dollars.
Source: SL 2010, ch 31, § 89.
5-18C-6. Fuel purchased by local government units.
The bid requirements of this chapter and chapters 5-18A, 5-18B, and 5-18D do not apply to the purchase of fuel by units of local government. The governing board of a unit of local government may, instead of advertising for bids, negotiate a contract for the purchase of fuel at the most advantageous price. The governing board shall contact and attempt to obtain competitive quotations from at least three suppliers. A record of the names of the suppliers, the quotations received and the procurement procedures used in purchasing shall be documented, noted in the minutes, and retained on file by the governing body. The contract may include a procedure for adjusting prices to meet changing market conditions not within the control of the vendor.
Source: SL 2010, ch 31, § 90.
5-18C-7. Municipal garbage disposal contracts and supply contracts.
For any contracts entered into pursuant to § 9-32-11 or for any supply contract, any local government may include a procedure for adjusting prices to meet changing market conditions not within the control of the vendor. The adjustments may not result in increases in the profit of the vendor, and shall be supported by written justification filed with the purchasing agent of the unit of local government.
Source: SL 2010, ch 31, § 91.
5-18C-8. Purchases from state contract list or below state contract price.
Notwithstanding the provisions of this chapter or chapter 5-18A, 5-18B, or 5-18D, any purchasing agency of a local governmental unit may purchase, without advertising for bids, from a willing vendor, any supplies contained in the state contract list established pursuant to § 5-18D-6, or from any willing vendor at a price at or below that shown in the state contract. The governing body of the purchasing agency shall note in its minutes what supplies were purchased from the state contract and shall further note the identity and address of the vendor and the price paid. If an item is purchased at a price lower than that found on the state contract, the purchasing agency shall note that fact in its minutes and show the identity and address of the vendor and the price paid.
Source: SL 2010, ch 31, § 92.
5-18D-1
Classification of supplies.
5-18D-2
Estimates of projected purchases.
5-18D-3
Pooling of combined estimated needs.
5-18D-4
Electronic procurement.
5-18D-5
Expert advice and assistance.
5-18D-6
State contract list.
5-18D-7
State bidders list.
5-18D-8
Procurement management internal service fund created.
5-18D-9
Rejection of bids to procure more advantageously elsewhere.
5-18D-10
Drawing, signing, and filing of contracts.
5-18D-11
Cancellation or price adjustment for changing market conditions.
5-18D-12
Suspension or debarment of business for cause.
5-18D-13
Printing contracts--Penalty.
5-18D-14
Printing office not to accept contracts from private individuals or organizations.
5-18D-15
Inscription listing publisher, number of copies, and cost of publication per copy.
5-18D-16
Soybean-based inks.
5-18D-17
Professional services exceeding fifty thousand dollars.
5-18D-18
Evaluation criteria to be stated in request for proposals.
5-18D-19
Discussion and negotiation of project.
5-18D-20
Register of proposals for professional service contract--Confidential information.
5-18D-21
Exemption of certain professional service contracts.
5-18D-22
Effect on time deadline in contested case.
5-18D-23
Notice of intent to purchase property or liability insurance or performance bonds.
5-18D-24
Bureau record keeping.
5-18D-25
Motor vehicle procurement.
5-18D-26
State auditor stop order
.
5-18D-27
Appeal of state auditor stop order.
5-18D-28
Criminal background checks for state contractors and subcontractors.
5-18D-1. Classification of supplies.
The Bureau of Human Resources and Administration shall classify all supplies purchased for the use of every agency of state government. The bureau shall group items of the same class so that contracts may be grouped for like commodities or classes of commodities.
Source: SL 2010, ch 31, § 94; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-18D-2. Estimates of projected purchases.
State agencies shall submit estimates of projected purchases within established commodity classifications as required by the Bureau of Human Resources and Administration. The bureau may change or modify the agency estimates in any manner determined to be in the best interest of the state.
Source: SL 2010, ch 31, § 95; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-18D-3. Pooling of combined estimated needs.
The Bureau of Human Resources and Administration may pool the combined estimated needs of several agencies for identical supplies or services under one contract.
Source: SL 2010, ch 31, § 96; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-18D-4. Electronic procurement.
For any state contract, any electronic sealed bid or proposal may only be submitted through an electronic procurement system authorized for use by the Bureau of Human Resources and Administration.
Source: SL 2010, ch 31, § 97; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-18D-5. Expert advice and assistance.
The Bureau of Human Resources and Administration may obtain expert advice and assistance from any officer or employee of any state agency for recommendations or assistance in the preparation of specifications and in the examination of bids or proposals or testing of samples submitted with bids or proposals.
Source: SL 2010, ch 31, § 98; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-18D-6. State contract list.
The Bureau of Human Resources and Administration shall establish a state contract list that contains a listing of the supplies or services which are in contracts executed by the bureau. The list shall also contain the name and address of the vendor supplying the supplies or services and the price of the item. The bureau shall make the contract list available to other purchasing agencies in a manner determined by the bureau to be the most efficient.
Source: SL 2010, ch 31, § 99; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-18D-7. State bidders list.
The Bureau of Human Resources and Administration may establish a state bidders list in order to facilitate the notification of official state invitations for bids or requests for proposals. Bidders may request placement on the state bidders list and notification of any lettings issued under this chapter. The bureau may establish by rules, promulgated pursuant to chapter 1-26, a fee for placement on the list to defray the cost of administration. Any fees charged shall be deposited in the internal service fund created in § 5-18D-8.
Source: SL 2010, ch 31, § 100; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-18D-8. Procurement management internal service fund created.
There is hereby created in the state treasury a procurement management internal service fund. The commissioner of human resources and administration shall apportion all expenses incurred in the administration of the procurement management system to all state departments, agencies, and institutions utilizing such system. Payments received therefrom shall be deposited into the procurement management internal service fund.
Source: SL 2010, ch 31, § 101; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-18D-9. Rejection of bids to procure more advantageously elsewhere.
If, after all bids or proposals are examined, the Bureau of Human Resources and Administration is satisfied that it can procure any or all of the supplies or services covered by the bids or proposals more advantageously elsewhere than from those submitting bids or proposals, it may reject any or all bids or proposals and procure any or all of the required supplies or services at the most advantageous price.
Source: SL 2010, ch 31, § 102; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-18D-10. Drawing, signing, and filing of contracts.
The attorney general shall draw all state contracts for supplies let under the provisions of this chapter and chapters 5-18A, 5-18B, and 5-18C. Each contract shall be signed by the commissioner of human resources and administration or a designee, on the part of the state, and by the party to whom the contract has been awarded. Each contract shall have the printed name of any individual signing the contract. Each contract and any required bond shall be filed in the Bureau of Human Resources and Administration. Failure to comply with the requirement for a printed name under this section does not void the terms or purpose of the contract.
Source: SL 2010, ch 31, § 103; SL 2018, ch 46, § 2; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-18D-11. Cancellation or price adjustment for changing market conditions.
If a contract price for goods entered into by the state becomes unreasonable in view of changing market conditions, the Bureau of Human Resources and Administration may cancel the contract or adjust the contract price to meet the changing market conditions if it is necessary to obtain necessary supplies at the required time. Any contract price adjustment shall be justified in writing by the contractor to the Bureau of Human Resources and Administration and a copy of the adjustment and the written justification for the adjustment by the contractor and the bureau shall be filed with the auditor general. No contract price adjustment may allow for increased management costs or for an increase in the dollar amount of profit for the contractor having the contract. No contract price adjustment resulting in an increase may be made for or during the first ninety days of an annual contract.
Source: SL 2010, ch 31, § 104; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-18D-12. Suspension or debarment of business for cause.
The Bureau of Human Resources and Administration, after notice to the business involved, may suspend or debar a business for cause from consideration of any state contracts. The suspension may not exceed three months and the debarment may not exceed three years. Any action to debar or suspend shall be conducted by the Bureau of Human Resources and Administration pursuant to chapter 1-26.
Source: SL 2010, ch 31, § 105; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-18D-13. Printing contracts--Penalty.
Each state contract for printing shall provide for a specific amount of penalty for failure on the part of the contractor to deliver the public printing in accordance with the plans and specifications within the time to be designated in the contract. The penalty shall be a fixed sum for each day so delayed. The penalty shall be applied by the Bureau of Human Resources and Administration according to the contract. The amount of the penalty shall be deducted in the voucher for payment for the work done under the contract. The state auditor may draw no warrant for any amount deducted by the bureau in any voucher certified for payment by the bureau. However, no contractor may be held accountable for any delay occasioned by holding proof sheets.
Source: SL 2010, ch 31, § 106; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-18D-14. Printing office not to accept contracts from private individuals or organizations.
No printing office within state government, whether the office is within the Bureau of Human Resources and Administration or within an institution of higher education, may accept printing contracts or jobs from private individuals or organizations.
Source: SL 2010, ch 31, § 107; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-18D-15. Inscription listing publisher, number of copies, and cost of publication per copy.
The Bureau of Human Resources and Administration shall establish by rules, promulgated pursuant to chapter 1-26, the criteria by which any publication, brochure, pamphlet, or flyer with a total cost exceeding one hundred dollars, paid for and distributed by a state agency shall bear an inscription listing the publisher, the number of copies published, and the approximate cost of publication per copy.
Source: SL 2010, ch 31, § 108; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-18D-16. Soybean-based inks.
The Bureau of Human Resources and Administration shall purchase, if the price is reasonably competitive and the quality is acceptable, soybean-based inks in lieu of conventional inks for use in any state government operations. The bureau may require the use of soybean-based inks by any private vendor under contract to a state agency in carrying out the terms of the contract if the price of the inks is reasonably competitive and the quality is acceptable.
Source: SL 2010, ch 31, § 109; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-18D-17. Professional services exceeding fifty thousand dollars.
No agency of the state may award or renew a contract for professional services exceeding fifty thousand dollars without complying with the procedures set forth in this section to § 5-18D-22, inclusive. Any agency seeking such professional services shall issue a request for proposals. The agency shall publish any request for proposals issued pursuant to this section on the electronic procurement system maintained by the Bureau of Human Resources and Administration. The request for proposals shall include the procedures for the solicitation and award of the contract.
Source: SL 2010, ch 31, § 111; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-18D-18. Evaluation criteria to be stated in request for proposals.
The request for proposals shall state the relative importance of evaluation criteria to be used in the ranking of prospective contractors. The agency shall include the following evaluation criteria in any request for proposals:
(1) Specialized expertise, capabilities, and technical competence as demonstrated by the proposed approach and methodology to meet the project requirements;
(2) Resources available to perform the work, including any specialized services, within the specified time limits for the project;
(3) Record of past performance, including price and cost data from previous projects, quality of work, ability to meet schedules, cost control, and contract administration;
(4) Availability to the project locale;
(5) Familiarity with the project locale;
(6) Proposed project management techniques; and
(7) Ability and proven history in handling special project constraints.
Source: SL 2010, ch 31, § 112.
5-18D-19. Discussion and negotiation of project.
The agency and the highest ranked contractor shall mutually discuss and refine the scope of services for the project and shall negotiate terms, including compensation and performance schedule. The compensation level paid shall be reasonable and fair to the agency, as determined by the agency. If the agency and the highest ranked contractor are unable for any reason to negotiate a contract at a compensation level that is reasonable and fair to the agency, the agency shall, by notification either orally or in writing, terminate negotiations with the contractor. The agency may then negotiate with the next highest ranked contractor. The negotiation process may continue through successive contractors, according to agency ranking, until an agreement is reached or the agency terminates the contracting process.
Source: SL 2010, ch 31, § 113.
5-18D-20. Register of proposals for professional service contract--Confidential information.
A register of proposals shall be prepared and maintained by any state agency issuing a request for proposals for a professional service contract. The register shall contain the names of any person whose qualifications were considered and the name of the person that was awarded the contract. Any professional service contract and the documentation that was the basis for the contract is public except for proprietary information which shall remain confidential. The qualifications and any other documentation of any person not issued a contract shall remain confidential.
Source: SL 2010, ch 31, § 114.
5-18D-21. Exemption of certain professional service contracts.
The provisions of §§ 5-18D-17 to 5-18D-20, inclusive, do not apply to contracts issued for:
(1) Services of such a unique nature that the contractor selected is clearly and justifiably the only practicable source to provide the service. Determination that the contractor selected is justifiably the sole source is based on either the uniqueness of the service or sole availability at the location required;
(2) Emergency services necessary to meet an urgent or unexpected requirement or if health and public safety or the conservation of public resources is at risk;
(3) Services subject to federal law, regulation, or policy or state statute, under which a state agency is required to use a different selection process or to contract with an identified contractor or type of contractor;
(4) Services for professional legal services;
(5) Services of expert witnesses, hearing officers, or administrative law judges retained by state agencies for administrative or court proceedings;
(6) Services involving state or federal financial assistance passed through by a state agency to a political subdivision;
(7) Medical services and home and community-based services;
(8) Services to be performed for a state agency by another state or local government agency or contracts made by a state agency with a local government agency for the direct provision of services to the public; or
(9) Services to be provided by entertainers for the state fair and other events.
Source: SL 2010, ch 31, § 115.
5-18D-22. Effect on time deadline in contested case.
Notwithstanding any other provisions of law, an agency that is required to issue a decision in a contested case proceeding in one year or less may increase its statutory deadline for issuing the agency decision by sixty days if the agency seeks to enter into a professional services contract covered by §§ 5-18D-17 to 5-18D-20, inclusive.
Source: SL 2010, ch 31, § 116.
5-18D-23. Notice of intent to purchase property or liability insurance or performance bonds.
The Bureau of Human Resources and Administration shall publish notice of its intent to purchase property or liability insurance or performance bonds. Publication of a notice containing a description of the coverage sought as a display advertisement in at least three newspapers of general circulation in different parts of the state at least sixty days prior to the purchase, along with publication in the South Dakota Register, shall be considered compliance with the notice requirements of this section.
The notice provisions of this section do not apply to expenditures of less than five thousand dollars.
Source: SL 2010, ch 31, § 117; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-18D-24. Bureau record keeping.
The Bureau of Human Resources and Administration shall keep suitable records in which shall be recorded all requisitions for public printing, stationery, and supplies, all advertisements, bids, certified checks, bonds, contracts, orders, vouchers, and all acts and proceedings taken under the provisions of this chapter and chapters 5-18A, 5-18B, and 5-18C. All requisitions, advertisements, bids, certified checks, bonds, specifications, schedules of specifications, contracts, reports, and any other papers or documents executed under the provisions of this chapter and chapters 5-18A, 5-18B, and 5-18C shall constitute the files in the bureau, except as otherwise provided for in this chapter and chapters 5-18A, 5-18B, and 5-18C.
Source: SL 2010, ch 31, § 119; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-18D-25. Motor vehicle procurement.
The procurement of motor vehicles by the state shall only be from authorized dealers licensed by the State of South Dakota.
Source: SL 2010, ch 31, § 93.
5-18D-26. State auditor stop order.
The state auditor may stop the letting or the execution of any contract with the state, or with any state officer, commission, board, institution, or agency by serving a written notice of the order on the officer, commission, or board involved, the secretary of state, the attorney general, and on the contractor, if any, stating the grounds on which the state auditor has determined that the contract is illegal, unauthorized, or improper.
Source: SL 2010, ch 31, § 24.
5-18D-27. Appeal of state auditor stop order.
From any order or decision of the state auditor stopping execution of any contract obligation of the state, any person aggrieved or interested may appeal to the State Board of Finance at any time within twenty days after the stop order was filed with either the attorney general, the secretary of state, the state treasurer, or the department involved by serving notice of appeal on the state auditor and the Governor. The notice shall state the decision being appealed and shall ask for a hearing on the appeal. Upon receiving the notice, the Governor shall call a meeting of the State Board of Finance. The board shall consider the appeal, make a decision, enter the decision in the journal, and give notice to the appellant and the department involved. Any order of the Board of Finance as expressed in the board's decision is binding upon the state department, institution, agency, or office involved and shall be carried out accordingly.
Source: SL 2010, ch 31, § 25.
5-18D-28. Criminal background checks for state contractors and subcontractors.
The state shall notify each current or prospective contractor or subcontractor that the awarding of a contract with the state has granted or will grant access to confidential information obtained from the United States Internal Revenue Service or an authorized secondary source. Each person who is granted access to the confidential information as a result of entering into a contract with the state shall submit to and successfully pass a state and federal criminal background investigation. The contractor or subcontractor shall submit to a fingerprint check by the Division of Criminal Investigation and the Federal Bureau of Investigation before being granted access to any confidential information. The appointing authority shall submit the completed fingerprint card to the Division of Criminal Investigation.
Each contract entered into by the state where access to confidential information obtained from the United States Internal Revenue Service or from an authorized secondary source is granted to a contractor or a subcontractor shall include terms regarding which party is responsible for payment of any fee charged for the cost of fingerprinting or the criminal background investigation and regarding the potential event that a disqualifying record is discovered through the background investigation process.
Source: SL 2017, ch 24, § 2.
5-19-1 to 5-19-9. Repealed.
5-20-1, 5-20-2. Repealed.
5-20-3
Superseded.
5-20-3.1
Repealed.
5-20-4 to 5-20-8. Repealed.
5-21-1
Surety bond required--Obligation of prompt payment of laborers and materialmen.
5-21-1.1
Waiver of performance security requirement on contracts under certain amount.
5-21-1.2
Repealed.
5-21-1.3
Waiver of performance security requirement for emergency procurement.
5-21-2
Public corporation's civil liability for failure to require bond for protection of laborers
and materialmen.
5-21-3
Surety bond to cover use tax liability--Amount of liability.
5-21-4
Notice of surety bond to secretary of revenue--Termination of surety's liability for use
and excise tax.
5-21-5
Laborers' and materialmen's right to intervene in action against public contractor--Pro
rata distribution if surety's liability insufficient.
5-21-6
Action by laborer or materialman on public contractor's bond--Limitation of action--Intervention by other claimants--Costs.
5-21-7
Pro rata distribution among claimants if bond insufficient--Surety relieved from
liability by payment into court.
5-21-8
Personal and public notice to creditors of action on public contractor's bond.
5-21-1. Surety bond required--Obligation of prompt payment of laborers and materialmen.
Except as provided in § 31-12-15, when any contract is entered into for the construction of public improvement or the furnishing of any material or labor therefor, the contractor is required, before commencing such work, to furnish surety in an amount not less than the contract price, for the faithful performance of the contract, with the additional obligation that the contractor shall promptly pay all persons supplying him with labor or material in the prosecution of the work provided for in the contract.
Source: SL 1907, ch 138, § 1; SL 1909, ch 245, § 1; RC 1919, § 8215; SDC 1939, § 65.0702; SL 1939, ch 300, § 7; SL 1987, ch 60, § 1.
5-21-1.1. Waiver of performance security requirement on contracts under certain amount.
The requirement of a performance security may be waived by a public corporation if the bid submitted does not exceed the limit established pursuant to § 5-18A-14 for a public improvement.
Source: SL 1968, ch 276; SL 1977, ch 51, § 2; SL 1985, ch 42, § 3; SL 1988, ch 56, § 3; SL 2015, ch 52, § 1.
5-21-1.3. Waiver of performance security requirement for emergency procurement.
The requirement of a performance security may be waived by a public corporation if the procurement meets the requirements established pursuant to § 5-18A-9.
Source: SL 2016, ch 41, § 1.
5-21-2. Public corporation's civil liability for failure to require bond for protection of laborers and materialmen.
In case any such public corporation shall fail or neglect to require the execution of the surety provided for in § 5-21-1, such public corporation shall be liable to pay any person who shall have performed labor or furnished any material that entered into the erection, alteration, repair or improvement of such building, the value of such work or material and an action may be maintained therefor; provided, that an action brought under the provisions of this section shall be commenced within ninety days from the acceptance of the work for which the same shall be claimed.
Source: SL 1909, ch 245, § 2; RC 1919, § 8217; SDC 1939, § 65.0704; SL 1939, ch 300, § 9.
5-21-3. Surety bond to cover use tax liability--Amount of liability.
If a contract is entered into for the construction, alteration, or repair of improvements to be located in this state, including public improvements, and the contractor or subcontractor furnishes surety for the faithful performance of the contract, there is hereby imposed an additional obligation upon the surety to the State of South Dakota that the contractor or subcontractor shall promptly pay all taxes which may accrue to the State of South Dakota under the provisions of chapters 10-46, 10-46A, and 10-46B. For the purposes of this section and § 5-21-4 the term, surety, means a bond or undertaking executed by a surety company authorized to do business in the State of South Dakota.
Source: SL 1957, ch 479, §§ 1, 2; SDC Supp 1960, § 65.0702-1; SL 1992, ch 48, § 1.
5-21-4. Notice of surety bond to secretary of revenue--Termination of surety's liability for use and excise tax.
The surety within sixty days after entering into such performance bond shall send notice of the bond to the secretary of revenue. Six months after the completion of the contract and the acceptance of the improvement by the owner thereof, the additional obligation imposed upon the surety shall cease unless written notice, within such period of time, of unpaid use taxes and contractors' excise taxes, is given to the surety by the secretary of revenue.
Source: SL 1957, ch 479, § 2; SDC Supp 1960, § 65.0702-1; SL 1992, ch 48, § 2.
5-21-5. Laborers' and materialmen's right to intervene in action against public contractor--Pro rata distribution if surety's liability insufficient.
Any person who has furnished labor or material used in the construction of any such public improvement as described in § 5-21-1, payment for which has not been made, shall have the right to intervene and be made a party to any action instituted by the public corporation on the surety, and to have his rights and claims adjudicated in such action and judgment rendered thereon, subject, however, to the priority of the claim and judgment of such public corporation. If the full amount of liability of the surety company is insufficient to pay the full amount of such claims and demands, then, after paying the full amount due the public corporation, the remainder shall be distributed pro rata among such interveners.
Source: SL 1907, ch 138, § 1; SL 1909, ch 245, § 1; RC 1919, § 8215; SDC 1939, § 65.0702; SL 1939, ch 300, § 7.
5-21-6. Action by laborer or materialman on public contractor's bond--Limitation of action--Intervention by other claimants--Costs.
If no suit should be brought by the public corporation within six months from the completion and final settlement of such contract, the person supplying the contractor with labor or material shall, upon application therefor and furnishing affidavit to the corporation that labor or material for the prosecution of such work has been supplied by him and payment for the same has not been made, be furnished with a certified copy of such contract and surety, upon which he shall have a right of action and shall be authorized to bring suit in the name of the public corporation in the circuit court for the county in which such contract was to be performed and not elsewhere, for his use and benefit, against such contractor and his surety, and to prosecute the same to final judgment; provided, that where suit is instituted by any such person on the surety of the contractor, it shall not be commenced until six months after the complete performance of such contract and final settlement thereof but must be commenced within one year thereafter; provided, further, that where suit is so instituted by any such person, only one action shall be brought, and any person may file his claim in such action and be made a party thereto within one year from the completion of the work under such contract, and not later; and provided, further, that costs shall not be taxed in such suit against the public corporation.
Source: SL 1907, ch 138, § 2; RC 1919, § 8216; SDC 1939, § 65.0703; SL 1939, ch 300, § 8.
5-21-7. Pro rata distribution among claimants if bond insufficient--Surety relieved from liability by payment into court.
If recovery on the bond should be inadequate to pay the amounts found due all such persons, judgment shall be given to each person for his pro rata of the amount of recovery. The surety company may pay into court for distribution among such claimants and creditors the full amount of the penalty named in the bond, less any amount which such surety company may have paid to the public corporation by reason of the execution of such bond, and upon so doing the surety company shall be relieved from further liability.
Source: SL 1907, ch 138, § 2; RC 1919, § 8216; SDC 1939, § 65.0703; SL 1939, ch 300, § 8.
5-21-8. Personal and public notice to creditors of action on public contractor's bond.
In all suits instituted under the provisions of §§ 5-21-5 and 5-21-6, personal notice of the pendency of such suit, informing them of their right to intervene, as the court may order, shall be given to all known creditors, and in addition thereto notice shall be given by publication in some newspaper of general circulation, published in the county where the contract is being performed once each week for at least two successive weeks with the first publication to be made at least three months before the time limited therefor.
Source: SL 1907, ch 138, § 2; RC 1919, § 8216; SDC 1939, § 65.0703; SL 1939, ch 300, § 8; SL 1972, ch 33, § 1.
5-22-1
Mechanics' and materialmen's lien on amounts due under contract.
5-22-2
Filing with public officer of account of claim--Effect of late filing--Agreed statement
as equivalent of account.
5-22-3
Endorsement and report of accounts filed with public officer--Time of attachment of
lien--Receipt or certified copy given.
5-22-4
Actions to enforce or determine lien--Parties to action--Assertion of lien by answer.
5-22-5
Judicial determination of validity of liens and order of payment.
5-22-6
Pro rata distribution if contract proceeds insufficient--Deficiency judgment against
contractor--Restriction on public liability.
5-22-7
Limitation of actions to enforce lien.
5-22-8
Discharge of lien.
5-22-9
Notice by public contractor to file claims against subcontractors--Contents of notice.
5-22-10
Filing and publication of notice to file claims against subcontractors.
5-22-11
Claims and liens against contractor and public body barred by failure to file--Rights
against subcontractor preserved.
5-22-12
Right of action not lost by loss of lien.
5-22-1. Mechanics' and materialmen's lien on amounts due under contract.
Any person who shall furnish skill, labor, materials, machinery, or supplies, services, or equipment, in connection with the carrying on of any work of construction, alteration, or repair of any public improvement work of the State of South Dakota, or any of its political subdivisions including counties, townships, municipalities, school districts, drainage districts, and any departments, bureaus, agencies, or commissions thereof to any person who shall have made any contract or subcontract therefor, shall have a lien for the same upon all moneys in the control of such public body due or to become due under such contract.
Source: SL 1895, ch 133, §§ 1, 9; RCCivP 1903, §§ 713, 721; RC 1919, §§ 1660, 1668; SL 1925, ch 221; SL 1929, ch 213; SDC 1939, § 39.0901.
5-22-2. Filing with public officer of account of claim--Effect of late filing--Agreed statement as equivalent of account.
Every person wishing to avail himself of the provisions of the statutes providing liens on proceeds of public improvement contracts shall, within twenty days after any item claimed by him shall have been furnished or any work done by him shall have been performed, file with the officer of such public body who is by law made the custodian of its official records, a just and true account of the demand due or to become due him after allowing all credits and verified by his affidavit. A failure to file the same within the time aforesaid shall not defeat the lien upon the amount remaining due to the contractor at the time of filing. If any person who shall have performed labor or furnished materials as provided in this chapter shall procure from the contractor a settlement and statement of his account, signed by the contractor and verified by his own affidavit, the same may be filed and shall have the same force and effect as the account heretofore mentioned.
Source: SL 1895, ch 133, § 2; RCCivP 1903, § 714; RC 1919, § 1661; SDC 1939, § 39.0902.
5-22-3. Endorsement and report of accounts filed with public officer--Time of attachment of lien--Receipt or certified copy given.
The officer of the public body with whom the account is filed shall endorse upon every account so filed, the date of the filing and report the same to the next meeting of the governing board of such public body. All liens so claimed shall attach from the time of such filing. The officer shall, if demanded, give the person filing, a receipt showing such date of filing or a certified copy of the account or substantial abstract thereof and filing thereon.
Source: SL 1895, ch 133, § 3; RCCivP 1903, § 715; RC 1919, § 1662; SDC 1939, § 39.0903.
5-22-4. Actions to enforce or determine lien--Parties to action--Assertion of lien by answer.
Any person having such lien may bring an action to enforce the same in the circuit court for the county where the work or improvement or any part thereof shall be situated. Actions may likewise be commenced to determine such lien by the public body or the contractor. The plaintiff in any such action must make all persons who shall have filed liens, the contractor, and the public body parties thereto.
Any person claiming a lien, if he be a defendant, may set forth such lien by answer.
Source: SL 1895, ch 133, § 4; RCCivP 1903, § 716; RC 1919, § 1663; SDC 1939, § 39.0904.
5-22-5. Judicial determination of validity of liens and order of payment.
The court shall determine the validity of all liens filed, the amount due upon each, the amount due to the contractor, and if the amount due to the contractor be sufficient, shall order the public body to pay the amounts of all liens adjudged valid to the persons entitled to the same and the costs of the action and the residue, if any, to the contractor.
Source: SL 1895, ch 133, § 4; RCCivP 1903, § 716; RC 1919, § 1663; SDC 1939, § 39.0904.
5-22-6. Pro rata distribution if contract proceeds insufficient--Deficiency judgment against contractor--Restriction on public liability.
If the amount due the contractor shall not be sufficient to pay all liens in full, the court shall order and direct the payment of the same, after deducting the costs of the action, to the persons whose liens are adjudged valid, ratably in proportion to the amounts of their several claims; and may render proper judgment against the contractor for any deficiencies.
The public body shall not be liable in any event for more than the amount due to the contractor under provisions of these statutes for any costs of the action.
Source: SL 1895, ch 133, § 4; RCCivP 1903, § 716; RC 1919, § 1663; SDC 1939, § 39.0904.
5-22-7. Limitation of actions to enforce lien.
All claims to liens under this chapter relating to public improvement contracts shall cease to have any validity or to be binding upon the public body or the contractor under the provisions of this chapter unless an action to enforce the same as hereinbefore provided shall be commenced within thirty days from the acceptance of the work for which the same shall be claimed or unless asserted under the provisions of §§ 5-22-9 to 5-22-11, inclusive.
Source: SL 1895, ch 133, § 5; RCCivP 1903, § 717; RC 1919, § 1664; SDC 1939, § 39.0905.
5-22-8. Discharge of lien.
Any such lien may be discharged:
(1) By filing with the officer with whom the liens shall be filed a certificate of satisfaction of the claimant or his successor in interest duly acknowledged;
(2) By lapse of the time within which an action to enforce the same may be commenced without such action having been commenced;
(3) By satisfaction of any judgment that may be rendered in any action to foreclose such lien.
Source: SL 1895, ch 133, § 6; RCCivP 1903, § 718; RC 1919, § 1665; SDC 1939, § 39.0908.
5-22-9. Notice by public contractor to file claims against subcontractors--Contents of notice.
At any time after the completion of any work or improvement for any public body the contractor may issue notice as hereinafter provided, specifically stating that the improvement has been completed and requiring that all subcontractors or persons who furnished any items of labor, service, skill, material, equipment, or supplies for any subcontractor, naming them, must file their claims with the contractor within one hundred twenty days after the first publication of said notice.
The notice shall specify the name and address of the public body, department, bureau, commission, or agency thereof which caused the improvement to be made and the name and address of the contractor, and that claims shall be filed at both addresses so specified. If the contractor be a nonresident of the State of South Dakota, he shall specify a place and address within the state where claims may be filed.
Source: SL 1929, ch 213; SDC 1939, § 39.0906.
5-22-10. Filing and publication of notice to file claims against subcontractors.
The contractor shall file such notice with the governing board of the public body in charge of the improvement, and such board shall thereupon by resolution designate a newspaper or newspapers in the vicinity of the work or improvement in which publication of said notice shall be made. The notice shall be published in such newspaper or newspapers once each week for at least two successive weeks and proof of such publication filed with the clerk, secretary, or similar officer of the public body making the improvement.
Source: SL 1929, ch 213; SDC 1939, § 39.0906; SL 1972, ch 33, § 2.
5-22-11. Claims and liens against contractor and public body barred by failure to file--Rights against subcontractor preserved.
All claims for any items under the provisions of this chapter furnished by any subcontractor or by any person to any subcontractor for making said improvement which are not filed in accordance with the provisions of said notice within one hundred twenty days from the first publication thereof shall be barred as a lien or claim against the public body and contractor, and no action on any claim so barred shall be maintained nor any right of setoff or counterclaim thereon enforced in any court in this state against the public body or the contractor nor against the surety or bonding company for either, but nothing in this statute shall in any manner bar the right of any person who has furnished any lienable items to any subcontractor to collect for the same from the said subcontractor.
Source: SL 1929, ch 213; SDC 1939, § 39.0906.
5-22-12. Right of action not lost by loss of lien.
Nothing in the statutes relating to such liens on public funds unless limited as hereinbefore provided shall impair or affect the right of any person to whom any sum may be due for work, skill, services, materials, power, machinery, or supplies furnished to any contractor for any of the work hereinbefore mentioned, to maintain an action against the person liable therefor.
Source: SL 1895, ch 133, § 7; RCCivP 1903, § 719; RC 1919, § 1666; SDC 1939, § 39.0907.
5-23-1
Superseded.
5-23-1.1 to 5-23-5. Repealed.
5-23-6
Repealed.
5-23-7 to 5-23-13. Repealed.
5-23-14, 5-23-14.1. Repealed.
5-23-14.2 to 5-23-22.4. Repealed.
5-23-22.5
Repealed.
5-23-22.6
Repealed.
5-23-23
Superseded.
5-23-24
Repealed.
5-23-25 to 5-23-31. Repealed.
5-23-32
Repealed.
5-23-32.1
Repealed.
5-23-32.2 to 5-23-34. Repealed.
5-23-35
Repealed.
5-23-36, 5-23-37. Repealed.
5-23-38 to 5-23-40. Transferred.
5-23-41 to 5-23-47. Repealed.
5-23-48
Repealed.
5-23-49
Repealed.
5-24-1
Annual inventory of personal property required of local officers and employees.
5-24-1.1
Inventory of state personal property required.
5-24-2
Cost or value to be shown in inventory--Filing.
5-24-3
Place of filing of duplicate inventories.
5-24-4
Purchased property to be noted in inventory report.
5-24-5
Lost or destroyed property to be noted in inventory--Date and circumstances shown.
5-24-6
Civil liability of officer for failure to account for property.
5-24-7
Delivery of public property to successor in office--Receipt.
5-24-8
Failure to account for public property as misdemeanor.
5-24-9 to 5-24-9.5. Repealed.
5-24-10
Repealed.
5-24-11
Repealed.
5-24-12
Acceptance of gifts to state--Actions for recovery.
5-24-13
Acceptance and distribution of federal surplus property--Records.
5-24-14
Property management internal service fund.
5-24-15
Transfer of property from Homestake Mining Company authorized.
5-24-16
Repealed.
5-24-17 to 5-24-20. Repealed.
5-24-21
Repealed.
5-24-1. Annual inventory of personal property required of local officers and employees.
County, township, or municipal officers or employees, having in their custody any public personal property, requiring inventory, as defined in rules issued by the commissioner of human resources and administration shall annually on the thirty-first day of December, or within ten days thereafter, make in duplicate an inventory of all the public personal property. School employees designated by the school board shall make such inventory annually by June thirtieth and file it as provided in § 5-24-3.
Source: SDC 1939, § 48.0501; SL 1961, ch 257; SL 1970, ch 41; SL 1975, ch 61, § 1; SL 1977, ch 54, § 1; SL 1983, ch 36, § 1; SL 2001, ch 31, § 1; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-24-1.1. Inventory of state personal property required.
Officers and employees of each state institution and department are required to maintain an inventory of all public personal property in the manner prescribed by rule by the commissioner of human resources and administration.
Source: SL 1977, ch 54, § 2; SL 1984, ch 30, § 78; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-24-2. Cost or value to be shown in inventory--Filing.
The inventories required by §§ 5-24-1 and 5-24-1.1 shall show the actual cost for each item, or the estimated cost at the time of acquisition, if the actual cost cannot be ascertained. In the case of gifts, the estimated fair market value at the time of acquisition shall be used. The officer or employee shall retain one copy of the inventory in the officer's or employee's office. The others shall be filed as provided in §§ 5-24-1.1 and 5-24-3.
Source: SL 1903, ch 220, §§ 1 to 3; SL 1913, ch 293, § 1; RC 1919, § 7048; SDC 1939, § 48.0501; SL 1975, ch 61, § 2; SL 1977, ch 54, § 3; SL 1983, ch 36, § 2; SL 1984, ch 30, § 79; SL 2011, ch 2, § 87.
5-24-3. Place of filing of duplicate inventories.
All officers in state educational institutions shall file one copy of the annual inventory with the secretary of the Board of Regents, and one copy with the commissioner of human resources and administration. All county officers and employees shall file one copy of the annual inventory with the county auditor. All municipal officers and employees shall file one copy of the annual inventory with the city auditor, finance officer, or town clerk of their respective municipalities. All township officers and employees shall file one copy of the annual inventory with the clerks of their respective townships. All school employees shall file one copy of the annual inventory with the business manager.
Source: SL 1903, ch 220, §§ 1 to 3; SL 1913, ch 293, § 1; RC 1919, § 7048; SDC 1939, § 48.0501; SL 1975, ch 61, § 3; SL 1983, ch 36, § 3; SL 1984, ch 30, § 80; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-24-4. Purchased property to be noted in inventory report.
When any personal property is purchased by the state or any county, municipality, township, or school district, to be utilized in pursuance of the duties of the office for which supplied, a note shall at once be made of its purchase and receipt in the inventory report for that year.
Source: SL 1913, ch 293, § 6; RC 1919, § 7053; SDC 1939, § 48.0504; SL 1977, ch 54, § 4; SL 1992, ch 60, § 2.
5-24-5. Lost or destroyed property to be noted in inventory--Date and circumstances shown.
If any article in the custody of any officer or employee is lost or destroyed, the officer or employee shall make a note of the loss or destruction in the inventory for the current year, giving the date and circumstances of the loss or destruction.
Source: SL 1903, ch 220, § 4; SL 1913, ch 293, § 2; RC 1919, § 7049; SDC 1939, § 48.0502; SL 2011, ch 2, § 88.
5-24-6. Civil liability of officer for failure to account for property.
If an officer or employee disposes of personal property without complying with the requirements of this chapter, the officer or employee, in addition to the penal penalty prescribed by law, is liable for the value thereof as shown by the last preceding inventory, to be recovered in a civil suit.
Source: SL 1913, ch 293, § 9; RC 1919, § 7056; SDC 1939, § 48.0506; SL 2011, ch 2, § 89.
5-24-7. Delivery of public property to successor in office--Receipt.
Each officer enumerated in § 5-24-1, shall turn over all the public personal property in the officer's possession to the officer's successor in office. Each officer shall take the receipt of the officer's successor for all property requiring inventory, as defined in rules promulgated by the commissioner of human resources and administration. The officer shall file any receipt in the offices where the officer is, by this chapter, required to file the inventory of the personal property in the officer's possession.
Each officer enumerated in § 5-24-1 shall, upon assuming office, give a receipt to his or her predecessor for all public personal property requiring inventory, as defined in rules promulgated by the commissioner of human resources and administration, turned over to the officer.
Source: SL 1913, ch 293, § 7; RC 1919, § 7054; SDC 1939, § 48.0505; SL 1975, ch 61, § 4; SL 2011, ch 2, § 90; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-24-8. Failure to account for public property as misdemeanor.
Any officer who fails to comply with any of the provisions of §§ 5-24-1 to 5-24-7, inclusive, is guilty of a Class 2 misdemeanor.
Source: SL 1913, ch 293, § 8; RC 1919, § 7055; SDC 1939, § 48.9902; SL 1980, ch 24, § 75; SL 2011, ch 2, § 91.
5-24-12. Acceptance of gifts to state--Actions for recovery.
Whenever any grant, devise, bequest, donation, or gift, or assignment of money, or chose in action, of any property, real or personal, is made to this state, the Governor shall receive the gift, the title thereto shall pass to the state, and the state may, if necessary, commence proceedings for the recovery of such property. However, if such gift is subject to any preexisting condition or contractual obligation, the Governor shall receive it only after determining that it is the best interest of the state to do so. A gift may be received subject to a preexisting condition or contractual obligation which it would be otherwise illegal to impose on state property if the property were already in the possession of the state.
Source: SDC 1939, § 55.1102; SL 1949, ch 216; SL 1977, ch 54, § 7; SL 1996, ch 46.
5-24-13. Acceptance and distribution of federal surplus property--Records.
The commissioner of human resources and administration shall cooperate with the United States government, the general services administration, or any other duly constituted federal agency, by expending moneys and accepting federal surplus commodities and property for care, exchange, and distribution of them to all eligible institutions. The commissioner of human resources and administration shall appoint an administrator who shall keep and maintain an accurate record of all property received and distributed. The record is subject to audit by the Department of Legislative Audit.
Source: SL 1953, ch 286; SL 1959, ch 292, § 3; SDC Supp 1960, § 55.1110; SL 1975, ch 62, § 1; SL 1976, ch 62; SL 2011, ch 2, § 94; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-24-14. Property management internal service fund.
There is hereby created in the state treasury a property management internal service fund. The commissioner of human resources and administration shall apportion all expenses incurred in the administration and operation of the property management program to all state departments, agencies, and institutions utilizing such program. All payments received by the Bureau of Human Resources and Administration pursuant to this section shall be deposited in the property management internal service fund.
Source: SL 1992, ch 47, § 3; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-24-15. Transfer of property from Homestake Mining Company authorized.
The Governor, pursuant to § 5-24-12, may accept, on behalf of the State of South Dakota, the transfer of any property or equipment from the Homestake Mining Company.
Source: SL 2001, ch 33, § 1.
CHAPTER 5-24A
DISPOSAL OF STATE SURPLUS PROPERTY
5-24A-1 Definition of terms.
5-24A-2 Disposition of surplus property by Bureau of Human Resources and Administration.
5-24A-3 Declaration of surplus property required for disposition.
5-24A-4 Protection of surplus property prior to disposal.
5-24A-5 Requirements for disposition.
5-24A-6 Property with fair market value greater than one hundred dollars.
5-24A-7 Property with fair market value less than one hundred dollars.
5-24A-8 Surplus personal computer equipment.
5-24A-9 Disposal by agency or bureau.
5-24A-10 Fixed assets.
5-24A-11 Trade-in requirements.
5-24A-12 Hazardous materials.
5-24A-13 Retention and disposition of sales proceeds.
5-24A-14 Conveyance in the name of the state.
5-24A-15 Donations prohibited--Exception.
5-24A-16 Promulgation of rules regarding disposal of surplus property.
5-24A-17 Liquidation of State Cement Plant Commission property.
5-24A-18 Disbursement of proceeds from liquidation of State Cement Plant Commission property.
5-24A-1. Definition of terms.
Terms used in this chapter mean:
(1) "Administrator," the director of property management for the Bureau of Human Resources and Administration;
(2) "Authorized entity," a political subdivision, school, Indian tribe, or any nonprofit educational or health institutions as determined under Section 501 of the Internal Revenue Code;
(3) "Bureau," the Bureau of Human Resources and Administration;
(4) "Cannibalization," to take salvageable parts from a disabled machine for use in building or repairing another machine; or to make use of a part taken from one thing in building or repairing something else;
(5) "Disposed," the destruction, sale, transfer, trade in, discarding, or donation of state personal property;
(6) "Fair market value," the price at which sales have been consummated for assets of like type, quality, and quantity in a particular market at time of acquisition;
(7) "Fixed asset," personal property that has an expected life exceeding one year and has an initial purchase cost of five thousand dollars or more;
(8) "Net disposal value," the fair market value less the expense of the most cost effective disposal method;
(9) "Personal property," all property which, due to its nature or physical characteristics, cannot be included within the scope or definition of real property. The term includes property capable of being moved from one place to another and usually has a useful life of temporary duration as compared to real property. The term does not include livestock, seed, nursery stock, or organisms purchased for use in research, agricultural, landscaping, or forestry activities of state institutions or agencies or products derived or made from them. The term does not include foodstuffs or inventory purchased for resale by state institutions;
(10) "Proceeds," funds derived from the sale of surplus property;
(11) "Property manager," the chief administrative officer of the agency or an authorized agent;
(12) "Public auction," either a tangible event at a public location, an electronic event which is advertised and made available to the public via the internet, or some other bid process which is advertised and made available to the public;
(13) "Public agency," any unit of state, local, or tribal government within the State of South Dakota;
(14) "Surplus property," any item of personal property that is no longer needed by the owning agency.
Source: SL 2008, ch 32, § 1; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-24A-2. Disposition of surplus property by Bureau of Human Resources and Administration.
The Bureau of Human Resources and Administration is responsible for the disposition of all surplus property for all state agencies. No state agency may dispose of surplus property without the written authorization of the bureau which may be in electronic format.
Source: SL 2008, ch 32, § 2; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-24A-3. Declaration of surplus property required for disposition.
Before any state-owned personal property is disposed of, the agency property manager shall declare the property surplus in the manner prescribed by this chapter.
Source: SL 2008, ch 32, § 3.
5-24A-4. Protection of surplus property prior to disposal.
Any state agency is responsible for the preservation of its surplus property prior to its disposal. The agency shall make reasonable efforts to protect its surplus property from the elements, theft, or any other means of destruction or deterioration.
Source: SL 2008, ch 32, § 4.
5-24A-5. Requirements for disposition.
State-owned property may not be disposed until the following steps have been taken:
(1) The agency property manager declares the property surplus;
(2) The property manager submits a form, prescribed by the bureau, to the administrator for approval. The form shall state in part:
(a) The legal name of the state agency;
(b) The complete address or location of the surplus property;
(c) A desired method of disposal of the surplus property as authorized in this chapter;
(d) The reason the property has been declared as surplus property;
(e) An estimate, current value, suggested selling price, or minimum acceptable price;
(f) A statement that the contents of the form have been reviewed by the property manager of the agency and that the facts contained in the form are true and correct;
(g) The fixed asset number if applicable; and
(h) Any other information determined by the bureau to be necessary;
(3) The administrator shall review the request and estimate the property's fair market value. The administrator shall, thereupon, designate the manner of disposal. Written notification of the designation shall be sent to the submitting agency property manager; and
(4) The agency shall maintain a record of all property it disposes of in a manner prescribed by the bureau.
Source: SL 2008, ch 32, § 5.
5-24A-6. Property with fair market value greater than one hundred dollars.
If the property has an estimated fair market value greater than one hundred dollars, the administrator may designate one of the following methods of disposal:
(1) Transfer to another state agency or Indian tribe with or without charge;
(2) Public auction;
(3) Exchange as trade-in for replacement equipment;
(4) Private direct sales at no less than ninety percent of the fair market value;
(5) Direct sales to any authorized entity at no less than ninety percent of the fair market value; or
(6) Cannibalization.
If the expense of disposal under this section would reduce the net disposal value of the property to less than one hundred dollars, the property may be disposed of pursuant to the provisions of § 5-24A-7.
Source: SL 2008, ch 32, § 6.
5-24A-7. Property with fair market value less than one hundred dollars.
If the property has an estimated fair market value less than one hundred dollars, the administrator may designate one of the following methods of disposal:
(1) Transfer to a state agency or authorized entity with or without charge;
(2) Internet sales;
(3) Public auction;
(4) Sale of the property as scrap;
(5) Exchange as trade-in for replacement equipment;
(6) Sales through agents for a negotiated fee;
(7) Direct sales to the public for established prices;
(8) Cannibalization; or
(9) Disposal at a landfill, recycling center, or other waste facility.
Source: SL 2008, ch 32, § 7.
5-24A-8. Surplus personal computer equipment.
In addition to the disposal options set out in § 5-24A-7, the administrator may designate that surplus personal computer equipment having an estimated fair market value less than one hundred dollars be distributed to families designated by the Department of Social Services as eligible for Title XIX assistance, Temporary Assistance for Needy Families pursuant to chapter 28-7A, or to licensed foster homes.
Source: SL 2008, ch 32, § 8.
5-24A-9. Disposal by agency or bureau.
The administrator shall either authorize the agency to dispose of the property itself or to transfer the property to the bureau for disposal.
Source: SL 2008, ch 32, § 9.
5-24A-10. Fixed assets.
If the property disposed of under the provisions of §§ 5-24A-1 to 5-24A-16, inclusive, is a fixed asset, the agency shall submit a fixed asset retirement form as designated by the bureau.
Source: SL 2008, ch 32, § 10.
5-24A-11. Trade-in requirements.
Before the administrator authorizes a trade-in of property, the administrator shall determine that the net benefit to the state exceeds the benefit that would be derived from a public sale of the item.
Source: SL 2008, ch 32, § 11.
5-24A-12. Hazardous materials.
The bureau may not receive, store, handle, or process any equipment, fluids, chemicals, residue, or other property which have been identified as hazardous by the bureau. Each state agency that has surplus hazardous materials is responsible for proper handling and disposal of those materials.
Source: SL 2008, ch 32, § 12.
5-24A-13. Retention and disposition of sales proceeds.
Any money derived from the sale of public personal property shall be retained in a revolving account. This revolving account shall be used to pay the administrative expenses pertaining directly to the transportation, sale, and storage of surplus public personal property. Any money derived from the sale of property acquired by dedicated funds, internal service funds, or property inventoried by constitutional institutions, less the administrative expenses pertaining directly to the transportation, storage, and sale of such property shall be returned to the respective fund or institution. Any money derived from the sale of property not acquired by dedicated funds, internal service funds, or property inventoried by constitutional institutions, less the administrative expenses pertaining directly to the transportation, storage, and sale of the property, shall be paid to the state treasurer at the end of each fiscal year.
Source: SL 2008, ch 32, § 13.
5-24A-14. Conveyance in the name of the state.
On approval of the sale of any personal property by the bureau, the conveyance of the personal property shall be made in the name of the State of South Dakota acting by and through the bureau by bill of sale or title certificate executed by the commissioner of human resources and administration or the commissioner's authorized representative.
Source: SL 2008, ch 32, § 14; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-24A-15. Donations prohibited--Exception.
Except as provided in § 5-24A-8, donations of state property to any private individual, for-profit organization, or state employee is prohibited. The sale of state property to any state employee is prohibited unless items are sold at public auctions.
Source: SL 2008, ch 32, § 15.
5-24A-16. Promulgation of rules regarding disposal of surplus property.
The commissioner of human resources and administration may promulgate rules pursuant to chapter 1-26 to carry out the functions of this chapter regarding the disposal of state surplus personal property.
Source: SL 2008, ch 32, § 16; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-24A-17. Liquidation of State Cement Plant Commission property.
Notwithstanding any other provision of law, including chapters 5-2, 5-7, and 5-24A, the commission shall, not later than June 30, 2011, liquidate all of the commission's remaining property, excluding any mineral estates owned or leased by the commission. If liquidating property with an estimated fair market value of greater than one hundred dollars, the commission shall dispose of the property in a manner consistent with the provisions of § 5-24A-6.
Source: SL 2010, ch 32, § 1.
5-24A-18. Disbursement of proceeds from liquidation of State Cement Plant Commission property.
Notwithstanding any other provision of law, the commission shall disburse the proceeds from the liquidation of the commission's property, to the extent proceeds are available, as follows:
(1) First, to pay any remaining noncontingent, liquidated liabilities of the commission;
(2) Second, the amount of three hundred fifty thousand dollars to the Bureau of Human Resources and Administration for the purpose of administering and paying existing and future workers compensation claims and life insurance coverage of former employees of the commission;
(3) Third, to the South Dakota Retirement System for the purpose of funding benefits payable to former employees of the commission. The amount disbursed shall be determined by the commission based upon an actuarial review for the fiscal year ending June 30, 2010; and
(4) Fourth, the remainder shall be paid into the trust fund created by S.D. Const., Art. XIII, § 20.
Source: SL 2010, ch 32, § 6; SL 2012, ch 23, § 92; SL 2024, ch 1 (Ex. Ord. 24-1), § 35, eff. Apr. 8, 2024.
5-25-1
Repealed.
5-25-1.1
State-owned or leased vehicles and aircraft to be used only for state business--Exceptions for vehicles--Violation as misdemeanor--Civil action and penalty.
5-25-2
Vehicle operation and mileage records--Report attached to claim for reimbursement.
5-25-2.1, 5-25-3. Repealed.
5-25-4
Internal service fund--Collection and disbursement of mileage payments and motor
vehicle disbursements.
5-25-5 to 5-25-7. Repealed.
5-25-1.1. State-owned or leased vehicles and aircraft to be used only for state business--Exceptions for vehicles--Violation as misdemeanor--Civil action and penalty.
Vehicles owned or leased by the state may be used only in the conduct of state business. No state officer or employee, except the Governor, law enforcement officers of the South Dakota Highway Patrol, law enforcement officers of the Division of Criminal Investigation, and conservation officers may use, or permit the use of, any state-owned motor vehicle other than in the conduct of state business. Nothing in this section prohibits any use of any state vehicle, if, in order to provide for the most efficient use of state equipment or personnel, supervisory personnel issue written instructions to any state employee to use a state vehicle for transportation:
(1) Between the employee's permanent residence and work station; or
(2) Between the employee's temporary residence or eating place and work station if assigned to a locality other than the employee's permanent residence.
For purposes of this section, any aircraft owned or leased by the state may be used only in the conduct of state business. None of the exceptions listed above are applicable regarding the use of any aircraft owned or leased by the state or any of its agencies.
A violation of this section is a Class 2 misdemeanor. The violator is also subject to a civil action by the State of South Dakota in circuit court for the recovery of a civil penalty of not more than one thousand dollars plus ten times the cost incurred by the state for misuse of any aircraft owned or leased by the state. An action for the recovery of a civil penalty or compensatory damages shall, upon demand, be tried by a jury.
Source: SL 1977, ch 56, § 1; Initiated Measure 5 approved Nov. 7, 2006; SL 2007, ch 34, § 1.
5-25-2. Vehicle operation and mileage records--Report attached to claim for reimbursement.
Each office, department, institution, board, and agency of this state operating a state-owned passenger motor vehicle shall keep and maintain in its respective office:
(1) Accurate records of its cost of operation of the motor vehicle;
(2) Travel reports showing destination and miles traveled each day according to speedometer registration and the total speedometer mileage at the beginning and at the end of each travel period, together with all operating expenses incurred for that period.
A copy of such travel report shall be attached to the claim or claims presented for reimbursement of the travel expense covered thereby.
Source: SL 1953, ch 303, § 2; SDC Supp 1960, § 55.1109; SL 2011, ch 2, § 97.
5-25-4. Internal service fund--Collection and disbursement of mileage payments and motor vehicle disbursements.
The Bureau of Human Resources and Administration shall maintain an internal service fund under the supervision of the commissioner of human resources and administration to collect and disburse mileage payments and motor vehicle disbursements equitably between the several departments, agencies, and officers of the state.
Source: SL 1943, ch 275, § 3; SDC Supp 1960, § 55.1108; SL 2011, ch 2, § 100; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
5-26-1
Definitions.
5-26-2
Deadlines for payments.
5-26-3
Interest on overdue payments--Rate.
5-26-3.1
Payment of less than five dollars in interest prohibited.
5-26-4
Additional appropriations for interest prohibited.
5-26-5
Disputed payments exempt--Notice of dispute required.
5-26-6
Time for payments to subcontractors and suppliers--Interest on overdue amounts--When payments due.
5-26-7
Citation of chapter.
5-26-8
Exemptions of transactions between government agencies.
5-26-1. Definitions.
Terms used in this chapter mean:
(1) "Agency," each association, authority, board, branch, commission, committee, council, department, division, office, officer, system, task force, or other agent of the state government vested with the authority to exercise any portion of the state's sovereignty and any county, municipality, public school district, and any officer, board, or commission empowered by law to enter into contracts for the construction of public improvements or for providing public services;
(2) "Business," a business, institution, association, profession, occupation, or calling of every kind, whether or not conducted for profit;
(3) "Contract," invoice, purchase order, or vendor contract;
(4) "Property," anything of value, including but not limited to, real estate, tangible and intangible personal property, contract rights, choses-in-action and other interests in or claims to wealth, admission or transportation tickets, captured or domestic animals, electric or other power and signatures which purport to create, maintain, or extinguish any legal obligation;
(5) "Service," labor that does not include a tangible commodity. The term includes, but is not limited to: labor; professional advice; telephone, cable television, and other utility service; accommodations in hotels, restaurants, or elsewhere; admissions to exhibits and entertainments; the use of machines designed to be operated by coin or other thing of value; and the use of rented real or personal property.
Source: SL 1984, ch 41, § 1; SL 1985, ch 45, § 1; SL 1988, ch 59, § 1.
5-26-2. Deadlines for payments.
An agency which acquires property or services pursuant to a contract with a business shall pay for each complete delivered item of property or service on the date required by contract between the business and agency or, if no date for payment is specified by contract, within forty-five days after receipt and written acceptance of property or services and receipt of the invoice covering the delivered items or services.
Source: SL 1984, ch 41, § 2; SL 1985, ch 45, § 2; SL 1987, ch 61, § 3; SL 1988, ch 59, § 2.
5-26-3. Interest on overdue payments--Rate.
Any proper invoice not paid within forty-five days shall accrue interest beginning on the thirtieth day after receipt of property or service and receipt of the invoice covering the delivered items or services. Interest shall accrue and be charged on any payment overdue under § 5-26-2 at the Category B rate of interest as established in § 54-3-16 or at the rate specified by contract.
Source: SL 1984, ch 41, § 3; SL 1985, ch 45, § 3; SL 2018, ch 47, § 1.
5-26-3.1. Payment of less than five dollars in interest prohibited.
No agency is required to pay interest due because of late payment if the interest is less than five dollars.
Source: SL 1985, ch 45, § 5; SL 1988, ch 59, § 3.
5-26-4. Additional appropriations for interest prohibited.
An agency may not seek additional appropriations to pay interest which accrues as a result of its failure to make timely payments required by § 5-26-2.
Source: SL 1984, ch 41, § 4.
5-26-5. Disputed payments exempt--Notice of dispute required.
No interest accrues under this chapter if an agency's failure to timely pay interest required by § 5-26-3 is the result of a dispute between the agency and the business over the amount due or over compliance with the contract. In case of dispute, the agency shall, within thirty days of receipt of property or services and receipt of invoice, give written notice to the business of disagreement with property or services. The notice shall include the reasons for and other pertinent details of the dispute and a copy of the notice shall be kept on file with the agency.
Source: SL 1984, ch 41, § 5; SL 1985, ch 45, § 6; SL 1988, ch 59, § 4; SL 2018, ch 47, § 2.
5-26-6. Time for payments to subcontractors and suppliers--Interest on overdue amounts--When payments due.
Upon payment by an agency, a business that has acquired under contract, property or services in connection with the business's contract with the agency from a subcontractor or supplier, shall pay the subcontractor or supplier within thirty days after receiving payment from the agency. Interest at the Category B rate of interest as established in § 54-3-16 shall accrue and is due any subcontractor or supplier who is not paid within thirty days after the business receives payment from the agency, unless otherwise provided by contract between the business and the subcontractor or supplier. Interest begins to accrue on the thirty-first day at the rate specified in this section. Payment is due when the subcontractor or material supplier has satisfied the terms of the contract or material delivery agreement.
Source: SL 1984, ch 41, § 6; SL 1988, ch 59, § 5; SL 2018, ch 47, § 3.
5-26-7. Citation of chapter.
This chapter may be cited as the South Dakota Prompt Payment Act.
Source: SL 1984, ch 41, § 7.
5-26-8. Exemptions of transactions between government agencies.
The provisions of this chapter do not apply to transactions between government agencies unless otherwise authorized by statute.
Source: SL 1985, ch 45, § 4.
5-27-1
State capital construction fund established.
5-27-2, 5-27-3. Repealed.
5-27-4
Transfer of funds to ethanol fuel fund.
5-27-5
Transfer of funds to state highway fund.
5-27-6
Transfer of funds to water and environment fund.
5-27-7 to 5-27-12. Repealed.
5-27-1. State capital construction fund established.
There is hereby established within the state treasury the state capital construction fund into which shall be deposited the net proceeds to the state from the sale of on-line lottery tickets pursuant to § 42-7A-24, and such other revenues as the Legislature may designate. The fund shall be a participating fund and shall be credited for all interest earned on fund balances. Expenditures from the fund shall be made only upon approval by the Legislature.
Source: SL 1993, ch 48, § 1; SL 1996, ch 47, § 1; SL 2018, ch 124, § 6.
5-27-4. Transfer of funds to ethanol fuel fund.
In fiscal year 2019, the Bureau of Finance and Management shall transfer each month twenty-one and one-half percent of the monthly state capital construction fund revenues from the state capital construction fund to the ethanol fuel fund. In fiscal year 2020, the Bureau of Finance and Management shall transfer each month fifteen percent of the monthly state capital construction fund revenues from the state capital construction fund to the ethanol fuel fund. In fiscal year 2021, the Bureau of Finance and Management shall transfer each month ten percent of the monthly state capital construction fund revenues from the state capital construction fund to the ethanol fuel fund. In fiscal year 2022, the Bureau of Finance and Management shall transfer each month five percent of the monthly state capital construction fund revenues from the state capital construction fund to the ethanol fuel fund.
Source: SL 1993, ch 48, § 23A; SL 1994, ch 57; SL 1995, ch 251, § 33A; SL 1996, ch 47, § 5; SL 1998, ch 218, § 2; SL 2018, ch 124, § 7.
5-27-5. Transfer of funds to state highway fund.
In fiscal year 2019, the Bureau of Finance and Management shall transfer each month fourteen and one-half percent of the monthly state capital construction fund revenues from the state capital construction fund to the state highway fund. In fiscal year 2020, the Bureau of Finance and Management shall transfer each month twenty-three percent of the monthly state capital construction fund revenues from the state capital construction fund to the state highway fund. In fiscal year 2021, the Bureau of Finance and Management shall transfer each month twenty-nine percent of the monthly state capital construction fund revenues from the state capital construction fund to the state highway fund. In fiscal year 2022, the Bureau of Finance and Management shall transfer each month thirty-four percent of the monthly state capital construction fund revenues from the state capital construction fund to the state highway fund. Beginning in fiscal year 2023 and each year thereafter, the Bureau of Finance and Management shall transfer each month thirty-six percent of the monthly state capital construction fund revenues from the state capital construction fund to the state highway fund.
Source: SL 1993, ch 48, § 25A; SL 1996, ch 47, § 6; SL 1998, ch 218, § 3; SL 2002, ch 170, § 4; SL 2018, ch 124, § 8.
5-27-6. Transfer of funds to water and environment fund.
During fiscal year 2019, the Bureau of Finance and Management shall transfer each month sixty-four percent of the monthly state capital construction fund revenues from the state capital construction fund to the water and environment fund. In fiscal year 2020, the Bureau of Finance and Management shall transfer each month sixty-two percent of the monthly state capital construction fund revenues from the state capital construction fund to the water and environment fund. In fiscal year 2021, the Bureau of Finance and Management shall transfer each month sixty-one percent of the monthly state capital construction fund revenues from the state capital construction fund to the water and environment fund. In fiscal year 2022, the Bureau of Finance and Management shall transfer each month sixty-one percent of the monthly state capital construction fund revenues from the state capital construction fund to the water and environment fund. Beginning in fiscal year 2023 and each year thereafter, the Bureau of Finance and Management shall transfer each month sixty-four percent of the monthly state capital construction fund revenues from the state capital construction fund to the water and environment fund.
Source: SL 1993, ch 48, § 25B; SL 1996, ch 47, § 7; SL 1998, ch 218, § 4; SL 2018, ch 124, § 9.
5-28-1 to 5-28-33. Repealed.
5-29-1
Legislative findings.
5-29-2
Definitions.
5-29-3
Research parks on state lands.
5-29-4
Accommodation of all kinds of facilities.
5-29-5
Lands subject to school and public lands trust.
5-29-6
Mineral rights.
5-29-7
Geothermal resources.
5-29-8
Structures and mineral leases may not disturb use of research park.
5-29-9
Authorized agreements.
5-29-10
Construction of agreements to permit only authorized uses.
5-29-11
Security for financing.
5-29-12
Lease period limit.
5-29-13
Commercially reasonable performance required--Enforcement and termination.
5-29-14
Title to improvements upon termination.
5-29-15
State not liable for research park debts.
5-29-16
Formation of research park corporations.
5-29-17
Board of directors appointed by Board of Regents.
5-29-18
Net earnings of research park corporation.
5-29-19
Research park corporation not a public body.
5-29-20
Research park corporation not subject to statutes and rules governing public bodies.
5-29-21
Research park corporation to have powers of nonprofit corporation.
5-29-1. Legislative findings.
The Legislature finds that to increase research and technology- related economic activity in South Dakota and to expand the opportunities for South Dakota faculty members, researchers, and students to participate in the application of research results and technological innovations in commerce, government, or public service, it is critically important to encourage research opportunities and programs within the regental system. To these ends, the Legislature intends that this chapter be construed as authorizing and encouraging coordinated public and private investments in facilities situated on lands controlled by the Board of Regents and designed to support commercial application of research results and technological innovations.
Source: SL 2012, ch 46, § 1.
5-29-2. Definitions.
Terms as used in this chapter mean:
(1) "Private party lessee or contractor," a business, a nonprofit corporation, or a research park corporation authorized by lease, contract, or agreement with the Board of Regents to construct, finance, operate, maintain, reconstruct, remodel, and manage, at its expense and risk, any research park established pursuant to this chapter;
(2) "Research," an investigation aimed at the discovery of new knowledge to create a new product or service, a new process or technique, or to bring about a significant improvement in an existing product or process;
(3) "Research park," a planned real estate development designed to promote the practical application of university research, to aid the transfer of knowledge, technology, and business skills through collaboration between universities and industry, government, or other organizations that apply research or technology, and to assist in the growth of research-based and technology-led economic development for the community, region, and state, by bringing together universities, institutes, laboratories, businesses, and governmental and other organizations devoted to testing, research, and development activities, to the commercial, governmental, or public policy application of research results or technological innovation, or to the management of research or technology-based enterprises, agencies, or organizations. The term includes such enterprises as may be necessary to support the activities of the primary tenants, their staff, or visitors; and
(4) "Research park corporation," any nonprofit corporation formed pursuant to this chapter and Title 47 for the purpose of constructing, financing, developing, maintaining, and operating a research park.
Source: SL 2012, ch 46, § 2.
5-29-3. Research parks on state lands.
The Board of Regents may utilize state lands under its control for the construction, development, maintenance, and operation of research parks.
Source: SL 2012, ch 46, § 3.
5-29-4. Accommodation of all kinds of facilities.
A research park authorized by this chapter may accommodate all kinds of facilities, laboratories, businesses, or organizations usually found at research parks affiliated with universities.
Source: SL 2012, ch 46, § 4.
5-29-5. Lands subject to school and public lands trust.
If any lands used for purposes of a research park are determined to be subject to the school and public lands trust established pursuant to S.D. Const., Art. VIII, § 7, then:
(1) A civil, state, religious, or public organization seeking to develop and to operate a research park may make application to the commissioner of school and public lands for conveyance pursuant to § 5-9-34. If the Board of Regents agrees to transfer possession of the land, the commissioner may convey defeasible title as provided in § 5-9-35 for the purpose of operating a research park. Upon any reversion, the land shall once again be placed under the control of the Board of Regents as part of the campus from which it was originally severed; or
(2) The Board of Regents may select other lands under its control of equal value, as determined by the commissioner of school and public lands, and exchange such other lands for those comprising the research park in order to maintain the principal of the school and public lands trust.
Source: SL 2012, ch 46, § 5.
5-29-6. Mineral rights.
Any mineral rights to state lands on which a research park has been established shall be managed in a manner that does not unreasonably interfere with research park operations.
Source: SL 2012, ch 46, § 6; SL 2013, ch 30, § 1.
5-29-7. Geothermal resources.
Notwithstanding any other provision of law, including chapter 5-7, the Board of Regents when approving a research park lease or sublease may lease such portions of the mineral interests reserved to the State of South Dakota in the lands occupied by the research park as may be necessary to permit the research park and its tenants to use geothermal resources for heating or cooling on-site facilities. The mineral interests may be leased on behalf of the State of South Dakota acting by and through the Board of Regents in a manner and upon terms acceptable to the board.
Source: SL 2012, ch 46, § 7.
5-29-8. Structures and mineral leases may not disturb use of research park.
The commissioner of school and public lands may not authorize the lease of mineral rights if exploitation of such rights would disturb the use of the research park, nor authorize construction of dams, canals, water ditches, or laterals if such structures would impair the use of the research park.
Source: SL 2012, ch 46, § 8.
5-29-9. Authorized agreements.
The Board of Regents may enter into any lease, contract, or agreement with a business, a nonprofit corporation, or a research park corporation to permit that entity, at its expense and risk, to construct, finance, maintain, and operate any research park established pursuant to this chapter.
Source: SL 2012, ch 46, § 9.
5-29-10. Construction of agreements to permit only authorized uses.
No lease, contract, or agreement may be construed to authorize the private party lessee or contractor, or any subtenant, creditor, trustee, receiver, lien holder, heir, assignee, or other party claiming an interest or right through such private party lessee or contractor, to use or to permit the use of the research park for purposes other than those specified in this chapter.
Source: SL 2012, ch 46, § 10.
5-29-11. Security for financing.
The lease, contract, or agreement may permit the private party lessee or contractor, or other parties claiming an interest or right through them, to pledge for commercially reasonable periods of time such rights of use or occupancy as may be possessed in order to obtain financing. However, no such pledge impairs the reversionary interests of the Board of Regents.
Source: SL 2012, ch 46, § 11.
5-29-12. Lease period limit.
No lease granted pursuant to this chapter may have a duration exceeding ninety-nine years.
Source: SL 2012, ch 46, § 12.
5-29-13. Commercially reasonable performance required--Enforcement and termination.
Each lease, contract, or agreement shall contain provisions that require commercially reasonable performance by the private lessee or contractor. Each lease, contract, or agreement shall contain provisions that reserve to the Board of Regents the power to enforce the requirements of this chapter and of any leases, contracts, or agreements issued pursuant to it, which reserved powers shall include the power of termination.
Source: SL 2012, ch 46, § 13.
5-29-14. Title to improvements upon termination.
Notwithstanding any other provision of law to the contrary, upon termination of any such lease, contract, or agreement, the Board of Regents may take title to all improvements comprising the research park.
Source: SL 2012, ch 46, § 14.
5-29-15. State not liable for research park debts.
Nothing in this chapter authorizes the Board of Regents or any entity operating a research park under a lease, contract, or agreement with the Board of Regents to contract a debt on behalf of, or in any way to obligate, the State of South Dakota, or to pledge, assign, or encumber in any way, or to permit the pledging, assigning, or encumbering in any way, of appropriations made by the Legislature of the State of South Dakota. No debt or liability of a research park is an indebtedness, legal or moral, of the State of South Dakota, and no creditor may have recourse against the State of South Dakota or any fund created or maintained directly or indirectly from state taxation.
Source: SL 2012, ch 46, § 15.
5-29-16. Formation of research park corporations.
The Board of Regents may form one or more research park corporations, separate and apart from the state, to construct, finance, develop, maintain, and operate research parks or economic development initiatives that support the teaching, research, or service mission of the university system by expanding opportunities for South Dakota faculty members, researchers, and students to participate in the application of research results and technological innovations in commerce, government, or public service.
Source: SL 2012, ch 46, § 16.
5-29-17. Board of directors appointed by Board of Regents.
Each research park corporation formed pursuant to § 5-29-16 shall be governed by, and all of the corporation's functions, powers, and duties shall be exercised by, a board appointed by the Board of Regents. Each research park corporation shall have the Board of Regents as its sole member. Members of the board may include university presidents, regents, university officers or employees, and other persons selected by the Board of Regents.
Source: SL 2012, ch 46, § 17.
5-29-18. Net earnings of research park corporation.
No portion of the net earnings realized by any research park corporation formed pursuant to § 5-29-16 may inure to any director or officer of the corporation or to any private entity or individual.
Source: SL 2012, ch 46, § 18.
5-29-19. Research park corporation not a public body.
No research park corporation formed pursuant to § 5-29-16 may be deemed an agency, public body, or other political subdivision of South Dakota, and no research park corporation formed pursuant to § 5-29-16 may borrow money secured by the State of South Dakota.
Source: SL 2012, ch 46, § 19.
5-29-20. Research park corporation not subject to statutes and rules governing public bodies.
No research park corporation formed pursuant to § 5-29-16 is subject to statutes or rules regulating the conduct of public bodies, including those relating to personnel, procurement of goods and services, board meetings, disposition or acquisition of property, capital outlays, per diem and mileage, and inspection of records. Nothing in this section relieves a research park corporation of the obligation to conform to criminal laws or other statutes of general application.
Source: SL 2012, ch 46, § 20.
5-29-21. Research park corporation to have powers of nonprofit corporation.
A research park corporation formed pursuant to § 5-29-16 shall have all rights, powers, and privileges granted to nonprofit corporations pursuant to Title 47 which are necessary and convenient to carry out and to effectuate the provisions of this chapter.
Source: SL 2012, ch 46, § 21.