S.D. Codified Laws § 1-33B-3.13
Except as provided in this section, the qualified energy service provider shall pay the governmental unit the amount of any verified annual guaranteed cost savings shortfall each year until guaranteed cost savings are achieved for each year in an initial monitoring period as established in § 1-33B-3.12. The amount of cost savings achieved during a year shall be determined using the baseline rates used in guaranteed cost savings.
In the case of a shortfall, the governmental unit and qualified energy service provider may negotiate the terms of measurement and verification reports and the shortfall payment for the remainder of the energy performance contract finance term.
If there is an excess in cost savings in any year of the guarantee period, the guaranteed cost savings remain with the governmental unit. Guaranteed cost savings may not be used to cover potential shortfalls in subsequent years or actual guaranteed cost savings shortages in previous years of a guarantee period.
SDCL 1-33B-3.13