Id. ¶ 17 This court's decision in AROK Constr. Co. v. Indian Constr. Sews., 174 Ariz. 291, 848 P.2d 870 (App. 1993), is instructive. In that case, Indian Construction Services ("ICS") submitted a bid to serve as general contractor for a construction project.

A contract may be formed even if not formally executed, if it is clear that the parties intended to bind themselves to the terms. AROK Constr. Co. v. Indian Constr. Servs., 174 Ariz. 291, 295, 848 P.2d 870, 874 (Ct. App. 1993) (holding that "the overriding question is whether the parties intended to contract"). For an enforceable agreement to exist, there must be "a bargain in which there is a manifestation of mutual assent and a consideration."

Minutes from the settlement conference indicate that Sierra Pines' counsel "advised the Court of the agreement as set forth on the record" and the court "noted for the record all parties knowingly, intelligently and voluntarily [had] reached an agreement," directing Sierra Pines' counsel "to draw up the agreement for signature." See AROK Constr. Co. v. Indian Constr. Servs., 174 Ariz. 291, 299 (App. 1993) ("Manifestations of assent that are in themselves sufficient to conclude a contract will not be prevented from so operating by the fact that the parties also manifest an intention to prepare and adopt a written memorial thereof ...." (quoting Restatement (Second) of Contracts § 27 (1981))).

The parties' anticipation of the creation of a more complete, thorough contract will not prevent enforcement of an otherwise binding contract unless a party has expressed the intention not to be bound until the future writing is executed. See id. at 471, ¶ 31 (concluding initial agreement was not binding where one party expressed the intention not to be bound until execution of the final agreement); 1 Samuel Williston & Richard A. Lord, Williston on Contracts § 4.11 (4th ed. 1999) ("[T]o avoid the conclusion that a contract has been formed it must be found as a fact that at least one of the parties has expressed the intention not to be bound until the [future] writing [is] executed."); AROK Constr. Co. v. Indian Constr. Servs., 174 Ariz. 291, 295, 299 (App. 1993) (concluding that, even if the parties anticipated making a written agreement, that fact would not preclude the finding that an oral contract was made if the parties intended to be bound). In determining whether the parties intended to be bound, a court may look to the writing, the parties' conduct, and the surrounding circumstances.

However, "certainty of terms relates to the parties' intent to contract: '[T]he requirement of certainty is not so much a contractual validator as a factor relevant to determining the ultimate element of contract formation—the question whether the parties manifested assent or intent to be bound.' Thus, the overriding question is whether the parties intended to contract." AROK Constr. Co. v. Indian Constr. Servs., 174 Ariz. 291, 295, 848 P.2d 870, 874 (App. 1993) (alteration in original) (quoting Schade v. Diethrich, 158 Ariz. 1, 9, 760 P.2d 1050, 1058 (1988)). "The old 'formalist' view limited the agreement to written terms and emphasized rules of contract, such as the requirement that the agreement include all material terms.

Thus, at least in its present posture, this case "presents the factual question whether the parties intended the [June 3] oral agreement to be binding and enforceable at that time," with the subsequent settlement documents and bankruptcy court approval merely required to memorialize and finalize the oral agreement. Tabler v. Industrial Comm'n, 202 Ariz. 518, ¶ 7, 47 P.3d 1156, ¶ 7 (App. 2002); see also Schade v. Diethrich, 158 Ariz. 1, 760 P.2d 1050 (1988); AROK Constr. Co. v. Indian Constr. Servs., 174 Ariz. 291, 848 P.2d 870 (App. 1993); Fotinos v. Baker, 164 Ariz. 447, 793 P.2d 1114 (App. 1990). ¶ 16 We also disagree with the respondent judge's conclusion that, as a matter of law, the June 3 settlement agreement "made clear that approval was a contingency and not a condition subsequent.

¶ 26 A contract may be formed, even if not formally executed, if it is clear the parties intended to bind themselves to the terms. AROK Constr. Co. v. Indian Constr. Servs., 174 Ariz. 291, 297, 848 P.2d 870, 876 (App. 1993); Restatement (Second) of Contracts § 27 (1981). A court may look to surrounding circumstances and the conduct of the parties to determine the parties' intent.

. A binding agreement “must be definite and certain so that the liability of the parties may be exactly fixed.” Rogus v. Lords, 804 P.2d 133, 136 (Ariz. App. Ct. 1991); see AROK Const. Co. v. Indian Const. Services, 848 P.2d 870, 877 (Ariz. App. Ct. 1993) (“Only ‘[i]f the essential terms are so uncertain that there is no basis for deciding whether the agreement has been kept or broken' does a contract not exist.”

In mixed sales/services contracts between a contractor and subcontractor, Arizona courts apply the Restatement (Second) of Contracts rather than Article 2 of the Uniform Commercial Code, in the absence of contrary authority. See AROK Constr. Co. v. Indian Constr. Servs., 848 P.2d 870, 874-79 (Ariz. Ct. App. 1993) (applying principles from the Restatement (Second) of Contracts to interpret an oral contract made between a contractor and subcontractor); see also Bank of Am. v. J. & S. Auto Repairs, 694 P.2d 246, 248 (Ariz. 1985) ("In the absence of contrary authority Arizona courts follow the Restatement of the Law.").

AROK Const. Co. v. Indian Const. Servs., 848 P.2d 870, 878 (Ariz.Ct.App. 1993) (emphasis added).