At Independence National Historical Park ("INHP"), the First Continental Congress, "justly alarmed at [the] arbitrary proceeding of parliament and administration," began their formal protests against King George III with a Declaration of Rights & Grievances, leading to The Declaration of Independence and the Constitution of the United States. Independence National Historical Park is America’s Birthplace. The Bill of Rights was adopted in 1791 at what is now INHP, giving INHP a particularly strong association with the right of freedom of speech and the right to petition the government. It is ironic that the National Park Service and the Federally-funded Independence Visitor Center Corporation ("IVCC") have worked in concert with one another to silence their critics through pretextual confidentiality agreements. Moreover, trying to silence The Constitutional shocked the conscience since the NPS's and IVCC's actions represented a very high level of abuse of power in which the NPS and its agent, the IVCC, acted randomly and arbitrarily, against The Constitutional.
The Constitutional Walking Tour's recent termination of its business operations at the Independence Visitor Center ("IVC") was the unfortunate consequence of years of failed good faith efforts by The Constitutional to have equitable visibility and accessibility both inside and outside the Independence Visitor Center ("IVC") due to the mismanagement and egregious behavior of the Independence Visitor Center Corporation and the National Park Service.
Background
Since 2005, The Constitutional has requested to license for a fee a dedicated ticket sales concession booth from the National Park Service and the IVCC on fair, reasonable and non-discriminatory terms commensurate with Ride the Ducks and Philadelphia Trolley Works, for example. Additionally, since 2005, The Constitutional has requested to also license/secure written permissions (i.e. commercial use authorizations, special use permit, memorandum of understanding, etc.) from the National Park Service and the IVCC on fair, reasonable and non-discriminatory terms commensurate with other third parties including Ride the Ducks, Philadelphia Trolley Works and Lights of Liberty, for example. However, each request by The Constitutional was either ignored or rebuffed by the NPS and the IVCC.
On May 31, 2008, The Constitutional again approached the Independence Visitor Center Corporation and the National Park Service to license a dedicated ticket sales booth inside the IVC, along the lines of the ticket sales booths operated by Ride the Ducks and Philadelphia Trolley Works. For the first time in approximately fifteen separate requests, the IVCC responded affirmatively and indicated that a ticket concession booth license agreement ("License Agreement") would be sent to The Constitutional.
On or about June 10, 2008, substantive discussions and negotiations commenced between The Constitutional (through Jonathan and Leslie Bari) and IVCC (through Christine Keates, IVCC's General Manager, at the request of William Moore, IVCC's former President and CEO) over licensing a ticket sales concession booth inside of the Independence Visitor Center, with the IVCC and its agents representing their desire to reach such a concession agreement. On June 14, 2008, Mr. Moore approved the location of said ticket sales booth for The Constitutional that was agreed upon in meetings and discussions between the Baris and the Ms. Keates.
On June 27, 2008, the IVCC’s legal counsel at Ballard Spahr sent a 26-page draft short-term License Agreement to The Constitutional for a dedicated ticket sales booth that would run from July 1, 2008 to February 29, 2009. IVCC’s counsel curiously asked that The Constitutional propose what it would like to pay for the "License Fee, the Percentage Payment and the Percentage Payment Trigger Amount." This request for The Constitutional to name its own price demonstrated that no standard policy existed at the IVCC and NPS regarding License Agreements for concessions, since if any standards existed, the IVCC and NPS would have simply stated the price (franchise fee) required to lease a kiosk, like any reasonable landlord would do when leasing commercial space.
Curiously though, the IVCC at one point seemed to consider establishing a system that would have been standardized and equitable. On April 19, 2005, Mr. Moore wrote to Scott Lewis, General Manager of Ride the Ducks Philadelphia,
"There is the high likelihood that each of the tour operators are going to want the same type space [ticket sales booth] in the [Independence] Visitor Center when your group moves in the building . We are planning on a large area with equal spaces so we don’t have to deal with the equality issues between operators."However, as the so-called "standard policy" evolved by the NPS and IVCC, Mr. Moore wrote to the NPS’s Dennis Reidenbach and Steve Sitarski on July 5, 2007: "The installation of booths is not a one size fits all plan." (emphasis added)
Despite the lack of equitable and standardized processes, The Constitutional continued to attempt to work with the IVCC and NPS. On July 11, 2008, The Constitutional emailed its detailed comments, questions and proposals on the draft License Agreement to the IVCC’s counsel and to the IVCC's senior management; The Constitutional requested a conference call or meeting the following week so that the parties could work quickly to finalize the License Agreement for the remaining portion of the Summer 2008 tourist season. To this day, no response has been received from the IVCC and/or the NPS to The Constitutional's written comments, questions and proposals sent back on July 11, 2008.
Instead, on July 25, 2008, IVCC’s counsel sent The Constitutional an overly broad and onerous draft Confidentiality Agreement that would bind The Constitutional to not disclose an almost unbounded range of information in perpetuity even if no License Agreement was ever executed.
