• A special chapter of the code relating to construction lien waiver agreements expressly preserves “all other means presently existing under law by which such liens may be waived,” and so the best practice is to assume contractual and other lien waivers are valid.
• A joint check can only be used as a waiver if on the reverse side of the check it makes reference to a separate written agreement of waiver between the maker and the person or corporation furnishing materials to the contractor or subcontractor. Such provision must be conspicuous and mention that the payees, by their endorsements and in consideration of the payment represented by the joint check, jointly and severally waive all claims to which they might be entitled under Title 5 and Title 44 of the South Dakota Codified Laws and the common law of South Dakota for all materials, supplies, equipment, and services supplied under a clearly identified contract to the extent of and of the date of the joint check, 44-9A-2.

Retainage Provisions

Public

• Except for the following, the rate of retainage is not defined by statute. For county buildings and improvements, there is a graduated scale of retainage. For contracts that are less than $50,000, retainage shall not be less than 12 percent. For projects up to $250,000 retainage shall be not less than 12 percent on the first $50,000, and 5 percent on the next $200,000. For projects exceeding $250,000, retainage shall not be not less than 12 percent on the first $50,000, 5 percent on the next $200,000, and 2.5 percent on the remaining contract amount.  S.D. CODIFIED LAWS§ 7-25-10.