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thereby waives immunity from suit." 314 P.2d at 280. This is the same concept laid down by the <br /> U.S. Supreme Court in Gardner, .supra, and followed by the Bankruptcy Code, Section 106, In re <br /> Slraight, supra, and In re Talbot, supra. <br /> In Newt Olsen Lumber Co. v. ,School District No. 8, 83 Colo. 272, 263 P. 723 (1928), the <br /> plaintiff asserted a cause of action for failure of the School District to require a bond from the <br /> contractor rather than asserting a direct breach of contract against the local government. Here, in <br /> contrast, MCR has sued for a direct breach of the Liquidation Plan contract. <br /> Likewise, Sussman v. University of Colo. Health Sciences Ctr., 706 P.2d 443 (Colo. App. <br /> 1985) and Morrison v. City of Aurora, 745 P.2d 1042 (Colo. Appl. 1987) are of no assistance to <br /> DMG. In both of those cases, although a contract between the State and plaintiff was present, the <br /> plaintiff was suing for breach of extra contractual duties; in the case of Sussman for the tort of <br /> retaliatory discharge and in the case of Morrison for the breach of the common law duty to make an <br /> adequate design. The contracts in both cases were silent as to those matters. In contrast, in the <br /> instant case, MCR alleges that the reclamation is to be done under a specific reclamation plan and <br /> that the State is not performing reclamation pursuant to that plan. <br /> In citing State Dept. of flitys. v. Mtn. States Telephone & Telegraph Co., 869 P.2d 1289 <br /> (Colo. 1994), DMG attempts to argue that MCR's action in this matter is an attempt to enforce the <br /> Reclamation Act which DMG then characterizes as a suit in tort. Again, the law is clear that <br /> MCR's action is a breach of contract action and even if the State is not limited to the Reclamation <br /> Plan found in MCR's permit, the Reclamation Act was incorporated as part of the bankruptcy <br /> Liquidation Plan and therefore, the State is contractually bound to follow it. Such a contract was <br /> not present in State Department of Highivays. <br /> DMG also argues that it should have wide and apparently unfettered discretion to perform <br /> 12 <br />