68:02 Board of Economic Development

1 ARTICLE 68:02
BOARD OF ECONOMIC DEVELOPMENT
Chapter
68:02:01 REDI loans.
68:02:02 Value-added agriculture subfund.
68:02:03 Tourism enhancement program, Repealed.
68:02:04 Value-added tourism subfund, Repealed.
68:02:05 Capital investment entity loans, Repealed.
68:02:06 Entrepreneur support program, Repealed.
68:02:07 Reinvestment payment program.
68:02:08 Economic development partnership program.
68:02:09 Local infrastructure improvement program.
68:02:10 South Dakota jobs grant program.

2
CHAPTER 68:02:01
REDI LOANS
Section
68:02:01:01 to 68:02:01:32 Repealed.
68:02:01:33 Definitions.
68:02:01:34 Eligibility requirements.
68:02:01:35 Application requirements -- Screening.
68:02:01:36 Loan amounts.
68:02:01:37 Equity contribution.
68:02:01:38 Use of loan proceeds.
68:02:01:39 REDI loan as take-out financing.
68:02:01:40 Factors for board action.
68:02:01:41 Board action on applications.
68:02:01:42 Acceptance and time restrictions of applicant. 3 68:02:01:43 Review of financial status.
68:02:01:44 Loan agreement -- Employment agreement -- Security.
68:02:01:45 Borrower reporting requirements.
68:02:01:46 Inspection by the board and retention of records.
68:02:01:47 Additional notification requirements.
68:02:01:48 Maturity and interest rate.
68:02:01:49 Default.
68:02:01:50 Delegation of administrative functions.
68:02:01:51 Official forms.
68:02:01:52 Conflicts of interest.
68:02:01:53 Confidentiality.
68:02:01:54 Repealed.
68:02:01:55 Banking Commission examination.
68:02:01:56 Credit committee -- Other committees.
4 68:02:01:35. Application requirements -- Screening. Application forms shall be
provided by GOED and shall be completed and signed before an application is presented to the
board. GOED shall screen all applications for completeness and eligibility upon receipt. No
incomplete or ineligible applications may be presented to the board. Applications shall include the
following information:

(1) Applicant's name and address;

(2) Names, addresses, résumés, and references of owners, investors, and management of
the business;

(3) Articles of incorporation and bylaws or other agreements that describe the legal
operation or structure of the business;

(4) Name and address of the owner or operator of the business during the term of the loan;

(5) A business plan which contains, as applicable, information regarding the housing,
products, or services to be offered by the applicant; job descriptions with attendant salary or wage
information by job category; employee benefit package; educational requirements by job category;
and methods of accounting, financing, marketing, sales, merchandising, and other disciplines
proposed to be used for business growth and expansion;

(6) Letters of commitment from all funding sources; 5
(7) Up to three years of historical balance sheets, cash flow statements, and income
statements or federal tax returns;

(8) Pro forma balance sheets, cash flow statements, and income statements for the greater
of three years or the term of the loan;

(9) A statement of licensing requirements;

(10) A statement that addresses the effect of the business on the tax base of the area of the
project and other positive and negative effects of the project on the area;

(11) Assurance of compliance with local zoning laws and building codes and that the
necessary public utilities are available or will be available when needed by the project;

(12) Approximate construction date, construction completion date, and the date by which
the project will be fully operational;

(13) Documentation that the preliminary design stage has been completed; and

(14) Any other information as requested by the board in order to make a sound loan
decision.
6 Source: 34 SDR 68, effective September 13, 2007.
General Authority: SDCL 1-16G-5, 1-16G-8(7).
Law Implemented: SDCL 1-16G-5, 1-16G-8(7).




7 68:02:01:36. Loan amounts. Unless waived by the affirmative vote of two-thirds of the
members of the board present and voting, a loan made pursuant to this chapter may not exceed the
original principal amount of $1,000,000$3,000,000. Unless waived by the affirmative vote of two-
thirds of the members of the board present and voting, a loan made pursuant to this chapter may
not exceed 45 percent of the total project cost.

Source: 34 SDR 68, effective September 13, 2007.
General Authority: SDCL 1-16G-5, 1-16G-8(10).
Law Implemented: SDCL 1-16G-5, 1-16G-8(10).




8 68:02:01:47. Additional notification requirements. The borrower shall provide the board
with written notice within 10 business days of any changes in top level management of the
borrower's business; any changes in ownership of 10 percent or more of the business’s stock,
membership interests, or ownership interests; or of any plans for sale, public offering, or lease of
the business. Any sale, public offering, or lease of the business requires the prior written approval
of the board. If the notification and prior approval requirements of this section are not satisfied,
the board may call the loan immediately due and payable.

Source: 34 SDR 68, effective September 13, 2007.
General Authority: SDCL 1-16G-5, 1-16G-8(5).
Law Implemented: SDCL 1-16G-5, 1-16G-8(5).




9 68:02:01:48. Maturity and interest rate. Except in the case of a project consisting solely
of multifamily housing, the maturity of the loan may not be more than five years from the date of
loan closing, with payments amortized over not more than 20 years. Upon the affirmative vote of
two-thirds of the members of the board present and voting, the board may at the time the loan is
approved establish a longer maturity for the loan, but in no event may the original maturity date
be more than 10 years from the date of loan closing. In the case of a project consisting solely of
multifamily housing, the maturity of the loan may not be more than 30 years from the date of loan
closing, with payments amortized over not more than 30 years.

The standard interest rate for REDI loans shall be established by the board from time-to-
time and published on the GOED website. The board may deviate from the standard interest rate
based on the economic impact of the project, nature and extent of collateral, risk, the amortization
period of the loan, and other prudent lending criteria.

The board shall consider the following when establishing the standard interest rate:

(1) State and national market interest rates;
(2) State and national economic conditions;
(3) The solvency and balance of the REDI fund; and
(4) Other economic or business information necessary to fulfill the board mission to
promote economic development in South Dakota.
10 The borrower is responsible for arranging other financing when the loan is due. If the
borrower is unable to obtain financing at reasonable rates and upon reasonable terms, the borrower
may apply before the loan due date for extension of the loan by the board at an interest rate and
time period established by the board. The borrower shall submit any application for extension by
the monthly loan application deadline prior to the loan maturity date.

Source: 34 SDR 68, effective September 13, 2007; 39 SDR 16, effective August 6, 2012;
46 SDR 123, effective May 12, 2020.
General Authority: SDCL 1-16G-5, 1-16G-8(7)(10).
Law Implemented: SDCL 1-16G-5, 1-16G-8(7)(10).




11 68:02:01:50. Delegation of administrative functions. The GOED shall have the
following authority on behalf of the board with respect to loans:

(1) to perform the administrative functions of the creation, processing, and review of loan
applications, including the financial status of an Applicant, prior to board
consideration;
(2) the to preparation prepare and negotiation ofnegotiate loan commitment letters and loan
agreements with a Borrower following the board’s approval of a loan;
(3) to add collateral requirements or co-Borrowers to conform to the circumstances of the
Borrower and the loan at the time of loan closing;
(4) to add or remove guarantors at the time of loan closing based on applicable board policy
with respect to a guarantor-owner’s interest in the Project;
(5) to consent to immaterial variances in total project costs or financing terms from other
funding sources in connection with loan closing;
(6) to close and fund a loan made pursuant to this chapter in a principal amount up to five
percent (5%) greater than originally approved by the board, subject to the following
restrictions:
a. the borrower documents to the GOED’s satisfaction specific, increased Project
costs incurred between loan approval and loan closing;
b. the increase in total project cost is not due to the Borrower’s decision to enlarge
the scope of the Project or its business materially from what was presented in
its application; 12 c. the increased loan amount does not increase the percentage of the total project
cost funded by the loan;
d. all other lenders agree to increase their respective funding for the Project on the
same basis; and
e. the board resolution approving the loan did not revoke or specifically limit the
GOED’s authority under this subsection;
(7) theto review of the financial status of an applicant Borrower; perform loan servicing
after loan closing; and other functions necessary to expedite and assist it in the
performance of its duties;
(8) to allow a partial lien release or substitution of collateral for a loan, if requested in
connection with the disposition of real or personal property collateral made in a
Borrower’s normal course of business after loan closing.

Notwithstanding any assurance, guarantee, communication, or representation made to the
contrary, there is no commitment of the REDI fund without specific authorization by the
board. Only the board may make an award from the REDI fund to an applicant.

Source: 34 SDR 68, effective September 13, 2007.
General Authority: SDCL 1-16G-5, 1-16G-8(5)(7).
Law Implemented: SDCL 1-16G-5, 1-52-3.2, 1-52-3.3, 1-52-51-53-3, 1-53-4, 1-53-5.

13 68:02:01:55. Banking Commission examination. The board shall request the South
Dakota Banking Commission to make an annual examination of the board's lending policies and
procedures and the documentation and classification of loans in the REDI fund loan portfolio,
including loans made under chapter 68:02:02 of this article and all other loans administered by the
board..

Source: 34 SDR 68, effective September 13, 2007; 39 SDR 16, effective August 6, 2012.
General Authority: SDCL 1-16G-5.
Law Implemented: SDCL 1-16G-5.




14
CHAPTER 68:02:10

SOUTH DAKOTA JOBS GRANT PROGRAM
Section
68:02:10:01 Definitions.
68:02:10:02 Eligibility.
68:02:10:03 Application
68:02:10:04 South Dakota Jobs grant.
68:02:10:05 Criteria.
68:02:10:06 Board action on application.
68:02:10:07 Acceptance.
68:02:10:08 Conditions of South Dakota Jobs grant.
68:02:10:09 Application for modification.
68:02:10:10 Time restrictions on applicant. 15 68:02:10:11 Affidavit for South Dakota Jobs grant.
68:02:10:12 Payment.
68:02:10:13 Delegation of administrative functions.
68:02:10:14 Access and reporting.
68:02:10:15 Default.
68:02:10:16 Remedies.
68:02:10:17 Conflicts of interest.



16 68:02:10:01. Definitions. Terms used in this chapter mean:

(1) "Applicant," any person that has completed a REDI fund grant application;

(2) "Board," the Board of Economic Development;

(3) "Commissioner," the commissioner of the Governor's Office of Economic
Development;

(4) "Completed the project" or "completion of the project," the first date when the project
is operational;

(5) "Construction date," the first date earth is excavated or a contractor has initiated work
for the purpose of constructing a new or expanded facility or the first date new equipment is located
on the project site or existing equipment is removed from the project site for the purpose of
equipment upgrades, whichever occurs first;

(6) "Equipment upgrades," the installation of new equipment or the replacement or
improvement of existing equipment, which is subject to the sales use tax imposed by chapters 10-
45 or 10-46 or contractor's excise tax imposed by SDCL chapter 10-46A or 10-46B;

(7) "GOED," the Governor's Office of Economic Development;
17 (8) "New or expanded facility," a new building or structure, or the expansion, renovation,
or retrofitting of an existing building or structure, which is subject to the contractor's excise tax
imposed by SDCL chapter 10-46A or 10-46B;

(9) "Person," any individual, firm, copartnership, joint venture, association, cooperative,
nonprofit development corporation, limited liability company, limited liability partnership,
corporation, estate, trust, business trust, receiver, or any group or combination acting as a unit;

(10) "Project," a new or expanded facility with a project cost which is less than twenty
million dollars, or equipment upgrades with a project cost which is less than two million dollars.
A project includes laboratory and testing facilities, manufacturing facilities, data centers, power
generation facilities, power transmission facilities, agricultural processing facilities, wind energy
facilities, and facilities defined by GOED as targeted industries. A project does not include a
building or structure:

(a) Used predominantly for the sale of products at retail, other than the sale of electricity
at retail, to individual consumers;
(b) Used predominantly for residential housing or transient lodging;
(c) Used predominantly to provide health care services;
(d) Used predominantly for the transportation or transmission of natural gas, oil, or crude
oil by means of a pipeline; or
(e) That is not subject to ad valorem real property taxation or equivalent taxes measured
by gross receipts; 18
(11) "Project cost," the amount paid by the project owner in money, credits, property, or
other consideration associated with a project, including without limitation, land, labor, material,
furniture, equipment, fees, or fixtures;

(12) "REDI fund," the Revolving Economic Development and Initiative Fund created
pursuant to SDCL 1-16G-3;

(13) "South Dakota Jobs subfund," that portion of the REDI fund funded pursuant to
SDCL 1-16G-48(5); and

(14) "South Dakota Jobs grant," a grant disbursed from the South Dakota Jobs subfund in
accordance with this chapter.

Source: 39 SDR 221, effective July 1, 2013.
General Authority: SDCL 1-16G-8.
Law Implemented: SDCL 1-16G-3, 1-16G-5, 1-16G-8, 1-16G-48(5)..




19 68:02:10:02. Eligibility. A person may apply for a South Dakota Jobs grant pursuant to
this chapter for a project as defined in § 68:02:10:01(10). The person shall:

(1) Timely file an application with GOED as required by § 68:02:10:03;
(2) Request the board take action to approve or deny its application for South Dakota Jobs
grant pursuant to § 68:02:10:06;
(3) Accept the board's approval pursuant to § 68:02:10:07;
(4) Timely file an affidavit for a South Dakota Jobs grant with GOED as required by
§ 68:02:10:11; and
(5) Otherwise comply with the conditions, restrictions, and limitations imposed by this
chapter.

Source: 39 SDR 221, effective July 1, 2013.
General Authority: SDCL 1-16G-5, 1-16G-8(6).
Law Implemented: SDCL 1-16G-3, 1-16G-5, 1-16G-8(6)., 1-16G-48(5).




20 68:02:10:03. Application. Any person commencing a project in South Dakota is eligible
to apply for a South Dakota Jobs grant. Each application shall be made on the form prescribed by
the commissioner, signed by the project owner, and submitted to GOED. The application must be
submitted to GOED no later than ninety days after the construction date. The application shall be
executed under penalties of perjury.

Source: 39 SDR 221, effective July 1, 2013.
General Authority: SDCL 1-16G-5, 1-16G-8(7).
Law Implemented: SDCL 1-16G-3, 1-16G-5, 1-16G-8(7)., 1-16G-48(5).




21 68:02:10:04. South Dakota Jobs grant. The board may approve South Dakota Jobs grant
as it deems appropriate based on the criteria set forth in this chapter.

Source: 39 SDR 221, effective July 1, 2013.
General Authority: SDCL 1-16G-5, 1-16G-8(9).
Law Implemented: SDCL 1-16G-3, 1-16G-5, 1-16G-8(9), .1-16G-48(5).




22 68:02:10:05. Criteria. When making a decision on an application, the board shall consider
the following:

(1) Likelihood the project would have occurred without the grant;
(2) Economic impact of primary jobs created or retained by the project;
(3) Net economic effects of increasing or stabilizing the economy on the community, area,
and state;
(4) Competitive effect of the project on existing businesses;
(5) Support of the public entities of the community and area for the project;
(6) The effect of the project on the environment, health, and safety of the people in the
community, area, and state;
(7) Compatibility of the project with economic development plans of the area and state;
(8) Type of project;
(9) Infrastructure needed to support the project;
(10) Impact of the project on the property tax base;
(11) Projected payroll, pay structure, and employee benefit structure;
(12) Number of jobs created or retained by the project;
(13) The potential success of the project and the potential for creating quality jobs and the
growth of those jobs; and
(14) The character, experience, management record, and background of the applicant.

Source: 39 SDR 221, effective July 1, 2013.
General Authority: SDCL 1-16G-5, 1-16G-8(8). 23 Law Implemented: SDCL 1-16G-3, 1-16G-5, 1-16G-8(8)., 1-16G-48(5).




24 68:02:10:06. Board action on application. After GOED has received the completed
application, the applicant may make a written request to GOED for the board to take action on the
application. If requested by the applicant, the fact that an application has been proposed or is
pending shall be maintained as confidential until such time as the applicant makes a written request
for the board to take action on the application. At the next regular meeting that is more than 15
days after the request to take action or within 60 days of the request, whichever is sooner, the board
shall approve the application as requested, approve the application contingent on the realization of
certain defined conditions, or disapprove the application. If the application is disapproved, the
reasons shall be transmitted to the applicant in writing. An applicant whose application has been
disapproved may submit another application that addresses the reason for disapproval. The board
may extend the time for consideration of an application for up to 50 additional days by advising
the applicant of the extension in writing. No action may be taken by the board on any application
submitted to GOED until requested in writing by the applicant. Any official action on the
application shall be taken in open session.

Source: 39 SDR 221, effective July 1, 2013.
General Authority: SDCL 1-16G-5, 1-16G-8(7)., 1-16G-48(5).
Law Implemented: SDCL 1-16G-3, 1-16G-5, 1-16G-8(7)., 1-16G-48(5).




25 68:02:10:07. Acceptance. Within 90 days of board approval of the application, the
applicant must accept the approval in writing or the approval is void. At the time of acceptance,
the applicant must either show it has complied with any requirements imposed by the board, or
agree in writing to comply with any such conditions prior to payment of the South Dakota Jobs
grant.

Source: 39 SDR 221, effective July 1, 2013.
General Authority: SDCL 1-16G-5, 1-16G-8(7)(11).
Law Implemented: SDCL 1-16G-3, 1-16G-5, 1-16G-8(7)(11)., 1-16G-48(5).




26 68:02:10:08. Conditions of South Dakota Jobs grant. At the time it takes action on an
application, the board may place conditions on any South Dakota Jobs grant approved under this
chapter in order to ensure substantial conformity with the representations contained in the
application and the criteria described in § 68:02:10:05 under which the grant was awarded.

The applicant shall notify the GOED in writing within 30 days of the construction date to
indicate the project has commenced.

Source: 39 SDR 221, effective July 1, 2013.
General Authority: SDCL 1-16G-5, 1-16G-8(11)
Law Implemented: SDCL 1-16G-3, 1-16G-5, 1-16G-8(11)., 1-16G-48(5).




27 68:02:10:09. Application for modification. If after receiving board approval of its
application, a material change occurs in the information contained in the approved application, the
applicant may apply to modify its approved application. The board may approve the application
for modification as requested, disapprove the application for modification, approve the application
for modification contingent on the realization of certain defined conditions, or disapprove the
application for modification. If the application for modification is disapproved, the reasons shall
be transmitted to the applicant in writing. An applicant whose application for modification has
been disapproved may submit another application for modification that addresses the reason for
disapproval.

Source: 39 SDR 221, effective July 1, 2013.
General Authority: SDCL 1-16G-5, 1-16G-8(7).
Law Implemented: SDCL 1-16G-3, 1-16G-5, 1-16G-8(7), .1-16G-48(5).




28 68:02:10:10. Time restrictions on applicant. The construction date must be no later than
six months after receiving a permit from GOED, however, the board may extend the time for the
construction date at the time the board approves the application if the request has been made in
writing by the applicant, or at a later date if mitigating circumstances prevent the applicant from
meeting the construction date deadline and the applicant has made diligent effort to meet the
construction date deadline established pursuant to this section.

Unless an extension is granted at the sole discretion of the board, no project costs that occur
after three years from the construction date may be included in the final project cost determination.
Any request for extension of the time allowed pursuant to this chapter to complete the project must
state the grounds for the requested extension and must be received by GOED within two years and
nine months from the date of construction. In no event may project costs incurred more than four
years from the date of construction be included in the final project cost determination.

Source: 39 SDR 221, effective July 1, 2013.
General Authority: SDCL 1-16G-5, 1-16G-8(7)(11)., 1-16G-48(5).
Law Implemented: SDCL 1-16G-3, 1-16G-5, 1-16G-8(7)(11)., 1-16G-48(5).




29 68:02:10:11. Affidavit for South Dakota Jobs grant. Within six months after the
completion of the project, the applicant shall file an affidavit for a South Dakota Jobs grant with
GOED. The affidavit for a South Dakota Jobs grant shall be on the form prescribed by the
commissioner, shall include a statement that the project, as completed, substantially conforms to
the project described in the original application or as modified pursuant to § 68:02:10:09, shall
contain all other information required by the chapter, and be signed by the project owner. The
affidavit for a South Dakota Jobs grant shall be executed under penalties of perjury.

Source: 39 SDR 221, effective July 1, 2013.
General Authority: SDCL 1-16G-5, 1-16G-8(7)(11).
Law Implemented: SDCL 1-16G-3, 1-16G-5, 1-16G-8(7)(11)., 1-16G-48(5).




30 68:02:10:12. Payment. Within 90 days of receiving the completed affidavit for a South
Dakota Jobs grant and a determination by GOED that all terms and conditions imposed pursuant
to this chapter have been met, GOED shall tender the South Dakota Jobs grant to the project owner
or the project owner's assignee. If the project owner or assignee has granted a security interest in
the expectation of receipt of a South Dakota Jobs grant, payment shall be made jointly-payable to
the project owner or assignee and the holder of the security interest. If GOED requests additional
information or documentation from the project owner, the 90 day period shall begin to run from
the date of receipt of the additional documents or information.

Source: 39 SDR 221, effective July 1, 2013.
General Authority: SDCL 1-16G-5, 1-16G-8(9)(11).
Law Implemented: SDCL 1-16G-3, 1-16G-5, 1-16G-8(9)(11)., 1-16G-48(5).




31 68:02:10:13. Delegation of administrative functions. The GOED shall perform the
administrative functions of the creation, processing, and review of South Dakota Jobs grant
applications; the creation, processing, and review of documentation necessary to evidence
compliance with the terms and conditions of the South Dakota Jobs grant and the requirements of
this chapter; disbursement of South Dakota Jobs grant and the requirements of this chapter; and
other tasks necessary to expedite and assist the board in the board's duties. Notwithstanding any
assurance, guarantee, communication, or representation made to the contrary, there is no
commitment of the South Dakota Jobs subfund without specific authorization by the board. Only
the board may approve a South Dakota Jobs grant from the South Dakota Jobs subfund.

Source: 39 SDR 221, effective July 1, 2013.
General Authority: SDCL 1-16G-5, 1-16G-8(5)(7).
Law Implemented: SDCL 1-16G-3, 1-16G-5, 1-16G-8(5)(7)., 1-16G-48(5).




32 68:02:10:14. Access and reporting. An applicant shall grant GOED reasonable access to
the project and to applicant's records, and provide such information, documentation, and reports
as GOED may require, for the purpose of determining compliance with the conditions of the
reinvestment payment and of this chapter.

Source: 39 SDR 221, effective July 1, 2013.
General Authority: SDCL 1-16G-5, 1-16G-8(5)(11).
Law Implemented: SDCL 1-16G-3, 1-16G-5, 1-16G-8(5)(11)., 1-16G-48(5).




33 68:02:10:15. Default. Any of the following constitutes a default upon the conditions of a
reinvestment payment:

(1) If the person filing the affidavit for a South Dakota Jobs grant knowingly makes any
material false statement or report in the affidavit for a South Dakota Jobs grant;

(2) Failure to adhere to the conditions of the South Dakota Jobs grant;

(3) Repeated failure by the applicant to provide access to the project or related documents
or to provide the reports and other information required by this chapter; or

(4) Failure of the applicant to remain current on its tax obligations to the State of South
Dakota. However, for the purposes of this section, the applicant is not deemed delinquent on its
tax obligations to the State of South Dakota if the applicant is currently disputing its tax obligation
in accordance with the appeal procedures provided by law.

Source: 39 SDR 221, effective July 1, 2013.
General Authority: SDCL 1-16G-5, 1-16G-8(9)(11).
Law Implemented: SDCL 1-16G-3, 1-16G-5, 1-16G-8(9)(11)., 1-16G-48(5).



34 35 68:02:10:16. Remedies. If there is a default pursuant to § 68:02:10:15 as determined by the
board, within thirty days of written demand from the board, the project owner shall repay to GOED
the South Dakota Jobs grant disbursed to the project owner. In addition to any other action
considered appropriate by the board to protect the interest of the board and the South Dakota Jobs
subfund, the board may retain counsel and commence a civil action to recover any grant proceeds
that the project owner is required to repay.

Source: 39 SDR 221, effective July 1, 2013.
General Authority: SDCL 1-16G-5, 1-16G-8(11), 1-16G-16.1.
Law Implemented: SDCL 1-16G-1.1(5)(7), 1-16G-3, 1-16G-5, 1-16G-8(11), 1-16G-16.1.




36 68:02:10:17. Conflicts of interest. No member of the board or the GOED staff may
participate in or vote upon a decision of the board concerning an application relating to a project
in which that member has a direct personal or financial interest.

Source: 39 SDR 221, effective July 1, 2013.
General Authority: SDCL 1-16G-5, 1-16G-8(7).
Law Implemented: SDCL 1-16G-3, 1-16G-5, 1-16G-8(7).