National Park Service Also Erroneously Claimed in Federal Court Filings that the Long-Term Operating Agreement Between the National Park Service and the Independence Visitor Center Corporation Existed Five Months Before the Actual Agreement Was Executed

The Great Conundrum: Did the Long-Term Operating Agreement Exist Between the National Park Service and Independence Visitor Center Corporation as of November 23, 2009?

The answer is no! As of November 23, 2009, a Long-Term Cooperative Operating Agreement ("Operating Agreement") did not exist between the United States Department of the Interior - National Park Service ("NPS") and the Independence Visitor Center Corporation ("IVCC") regarding the operation of the Independence Visitor Center ("IVC") in Philadelphia. The NPS and the IVCC only entered into this Operating Agreement on April 26, 2010, "for the purposes of establishing roles and relating to the funding, operation, use and maintenance of the Independence Visitor Center..." (Operating Agreement, Page 1).

National Park Service Erroneously Claimed in Federal Court Filings that National Park Service Officials Have Never Served on the Board of Directors of the Independence Visitor Center Corporation, a Private Corporation

The Paper Trail and Money Trail Show That Senior National Park Service Managers Have Served in Their Official Capacities on the Board of Directors of the Independence Visitor Center Corporation

On November 23, 2009, Michael Levy, Margaret Hutchinson, and Viveca Parker, the United States Attorneys representing the National Park Service ("NPS") defendants in the lawsuit brought by The Constitutional Walking Tour of Philadelphia ("The Constitutional"), erroneously argued in the NPS's Motion to Dismiss filed in the U.S. District Court for the Eastern District of Pennsylvania that NPS officials do not serve, and moreover have never served, on the Independence Visitor Center Corporation's ("IVCC") Board of Directors,

"Mr. [Dennis] Reidenbach and Ms. [Cynthia] MacLeod are not IVCC board members, and never have been, but they attend board meetings as representatives of the [Independence National Historical] Park and NPS. See current IVCC Board of Directors, and page 1 of June 18, 2009 minutes of Board meeting, attached hereto." (Defs. Reply, p. 9) (emphasis added)

Independence Visitor Center Corporation ("IVCC") Appears to Have Engaged in Eight-Year Effort to Marginalize The Constitutional Walking Tour and Keep the Evidence Secret

The IVCC Has Spent at Least $515,626.00 on Legal Fees to Ballard Spahr over the Period from July 1, 2003 to June 30, 2010

Overview
On July 21, 2003, Bill Moore, President and CEO of the Independence Visitor Center Corporation ("IVCC"), sent a critical evaluation of The Constitutional Walking Tour of Philadelphia ("The Constitutional") to Pennsylvania Governor Ed Rendell allegedly in response to a request from the Office of the Governor ("2003 Memorandum"). The 2003 Memorandum was finally revealed by the Office of the Governor on July 26, 2011 after a lengthy legal battle spearheaded at least in part by the IVCC. In the 2003 Memorandum, Mr. Moore revealed his apparent dislike for The Constitutional since Mr. Moore appears to have perceived The Constitutional as a threat:

"My conclusions on this tour are as follows: ... Copycat idea - not unique to Philadelphia - difficult to separate the product from the Boston [Freedom Trail] experience ... would be confusing to customers ... Philadelphia is almost over-burdened with disjointed products that consumers find hard to understand and use." (emphasis added)

In stark contrast to Mr. Moore's conclusions, The New York Times published a supportive Travel Advisory article about The Constitutional Walking Tour on October 26, 2003 in which it stated:

"A new walking tour of Philadelphia [The Constitutional] helps visitors find their way to sites relating to the city's history and its key role in the creation of the United States.The self-guided, three-mile tour, the Constitutional, features more than 30 historical sites, including churches, museums, former taverns and old hospitals."

Wasted Pennsylvania Taxpayer Dollars: The Independence Visitor Center Corp. ("IVCC") is not a "Tourism Promotion Agency" ("TPA")

Millions of Taxpayer Dollars Spent by The IVCC May Have Violated Permitted Uses of TPA Funds Including For Patronage Pay To Politically Connected "Key Employee" Who Now Works for The IVCC

In an effort to reduce budget shortfalls, Pennsylvania Governor Tom Corbett released a proposed 2011-2012 budget that "includes a 70% reduction in state funding for tourism marketing and promotion." On May 27, 2011, the Philadelphia Business Journal reported,

"Facing a $1 billion budget shortfall, Corbett hopes to save $5.5 million by eliminating the so-called Tourism Promotion Assistance distributed through 49 regional tourism-promotion agencies statewide. The money is used for television-and-print advertising, digital communication and other marketing."

As sacrifices are being made across the board to adapt to reduced funds, hopefully the Commonwealth's limited tourism promotion resources are not being used to continue supporting the unjust actions undertaken by the Independence Visitor Center Corporation ("IVCC"), a taxpayer supported public charity which operates the Independence Visitor Center, a Federal facility.

Tourism Promotion Agency Funding to the IVCC
From 2002 to 2009, the IVCC has received approximately $2.9 million of state taxpayer dollars from Tourism Promotion Agency ("TPA") funds allocated under the Tourism Promotion Assistance Grant Program to the Philadelphia Convention and Visitors Bureau ("PCVB"). Disconcertingly, such redistribution of tax dollars to the IVCC may have violated the permitted uses of those TPA funds and could therefore have potentially constituted the illegitimate and wasteful appropriation of public money.

Guidelines from the Pennsylvania Department of Community & Economic Development
The Pennsylvania Department of Community & Economic Development (“DCED”) published detailed guidelines entitled "Pennsylvania Tourism Office Grant Programs for Destination Marketing Organizations" ("Grant Program Guidelines"). According to the March 2010 release of these Grant Program Guidelines, the Tourism Promotion Act “establishes two grant programs that focus on local and regional marketing – the Tourism Promotion Assistance Grant Program and the Regional Marketing Partnership Grant Program.”

As a Tourism Promotion Agency, PCVB likely receives funds from the Tourism Promotion Assistance Grant Program, while the Greater Philadelphia Tourism Marketing Corporation (“GPTMC”) appears to be the Philadelphia recipient of the Regional Marketing Partnership Grant Program.

Appendix F of the Grant Program Guidelines lists Eligible and Non-Eligible Expenses for the grant funds (pages 39-40). While the reallocation of grant funds is not expressly covered, the delineation of Eligible Expenses emphasizes marketing-related expenditures. The Grant Program Guidelines repeatedly stress this marketing focus for the Grant Program funds.

In the “Introduction,” the Grant Program Guidelines state, “While we face significant economic challenges in 2010 the grant programs for Destination Marketing Organizations [i.e., PCVB] will continue to invest in tourism marketing and product development.” In Section I, Point A: Purpose of the Tourism Promotion Act, the Grant Program Guidelines explicitly state, “The purpose of the Tourism Promotion Act (Appendix A) is to support local and regional Destination Marketing Organizations in their efforts to market and promote tourism.”

As per the Grant Program Guidelines, eligibility to receive TPA funds is limited such that “only designated TPA’s may receive grants under the Tourism Promotion Assistance Grant Program.” “Pennsylvania has 49 designated destination marketing organizations that are eligible to participate in the Tourism Promotion Assistance grant program.” PCVB is a designated TPA. However, the IVCC is not, and has never been, designated as a Tourism Promotion Agency!

Lack of Diversity on the Taxpayer Funded Independence Visitor Center Corporation's Board of Directors

Of the 18 Members of the Independence Visitor Center Corporation's ("IVCC") Board of Directors, the IVCC Appears to Have 16 White Directors, 2 Black Directors, and Zero Directors of Either Hispanic or Asian Origin

The Independence Visitor Center Corporation ("IVCC") operates the Independence Visitor Center ("IVC") at Independence National Historical Park ("INHP"), a unit of the National Park Service ("NPS"), in Philadelphia. The IVC is owned and operated by the United States of America - National Park Service, which then has sub-contracted with the IVCC, a taxpayer supported 501(c)(3) public charity, to manage the IVC. Some of the most important moments in American history transpired at INHP: the drafting and signing of the Declaration of Independence and the drafting, debating and signing of the Constitution of the United States.

The Independence Visitor Center itself is situated just across the street from the Liberty Bell Center, which houses the iconic Liberty Bell that has come to symbolize America's freedom for many different groups: the early patriots, the abolitionists, those fighting for women's suffrage, and many seeking freedom throughout the world. As the gateway to INHP -- the place where America's freedom was established and where this great melting pot of diversity was born -- the IVCC should be quite cognizant of maintaining a governing Board of Directors that represents the great diversity of Philadelphia and America as a whole. Unfortunately, the IVCC has instead created an insular and homogeneous Board of Directors that does not reflect the diverse constituent base which funds the IVCC and which the IVCC serves.

Disparate Treatment by the Independence Visitor Center Corporation and National Park Service Has Unfairly Deprived The Constitutional Walking Tour of Economic Impact from Twenty Million Visitors

Overview
On May 26, 2011, the Independence Visitor Center Corporation ("IVCC") at Independence National Historical Park in Philadelphia celebrated the twenty millionth visitor to the Independence Visitor Center ("IVC"). In its 2010 Annual Report, the IVCC touts its economic impact:

"In 2010, the IVCC influenced approximately $42 million in additional tourism spending--at attractions, restaurants, shops and more--and the positive impressions and memories generated have immeasurable benefits for years to come."

"22% of visitors report that they spend more in Philadelphia because of their visit to the Visitor Center. The average increase in expenditures was $155."

"As a result of their visit to the Independence Visitor Center, participants added an average of 2.3 attractions to their itinerary (average of 2008, 2009 and 2010)." (emphasis found in original quotation)

Unfortunately, The Constitutional Walking Tour ("The Constitutional") had no access to the vast majority of the twenty million visitors and resulting economic impact therefrom, because of the disparate treatment that The Constitutional had received at the hands of the IVCC and the National Park Service ("NPS").  In turn, these regulations which were applied randomly and arbitrarily had a pronounced detrimental effect on The Constitutional's business, ultimately driving The Constitutional from the Independence Visitor Center.

On February 20, 2008, Bill Moore, President and CEO of the IVCC, testified to Philadelphia City Council, "One of the hallmarks of a visit to any historic city is a great tour." The Constitutional Walking Tour agrees that a great tour can illuminate the incredible past of a historic city, especially Philadelphia which is America's Birthplace. Unfortunately, Mr. Moore, other IVCC officials, and the NPS have negotiated back-room deals and arbitrarily dictated which tours visitors should take, thereby suppressing consumer choice and the free market in the pursuit of random and unfair regulation.

National Park Service and Independence Visitor Center Corporation Obfuscated Issues and Misled Congress

Overview
In December 2006, Senator Arlen Specter reached out to Dennis Reidenbach, Superintendent, Independence National Historical Park ("INHP"), and suggested a proposal to have INHP offer walking tour companies comparable accessibility and visibility to riding tour companies for visitors at the taxpayer funded Independence Visitor Center ("IVC"). Just days after Mr. Reidenbach received Senator Specter's proposal, Mr. Reidenbach appears to have summarily dismissed the proposal, even though he represented to Senator Specter that he "carefully reviewed" his proposal. Further, the Independence Visitor Center Corporation ("IVCC") adamantly lobbied the NPS in support of Mr. Reidenbach's rejection: "If we move an inch on this issue chaos will be the result" and we must "not offer or open the door an inch." In his rejection of Senator Specter's proposal which obfuscated the issues, Mr. Reidenbach said that he was "committed to working equally with all commercial tour operators", but that he was "not willing to open more space in the IVC to solicitation and ticket sales." That statement was untrue.  Just six months after Mr. Reidenbach outrightly rejected Senator Specter's proposal to not open up any more space for ticket sales inside of the Independence Visitor Center, Philadelphia Trolley Works and Big Bus Company debuted a brand new ticket sales concessions booth inside the Independence Visitor Center. However, The Constitutional Walking Tour was not offered the same commercial opportunities and concessions contracts made available by the NPS and IVCC to The Constitutional's competitors.

The Independence Visitor Center Corporation and National Park Service Sought to Suppress Constitutional Rights with Confidentiality Agreement

Overview
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.

The Constitutional Walking Tour Terminated at the Independence Visitor Center ("IVC"); IVC CEO Refused to "Diginfy" The Constitutional's Operational Concerns and Deemed Such Concerns "Nonsense"

April is the official start of The Constitutional Walking Tour's public tour operations for 2011, and The Constitutional Walking Tour will not be operating from the Independence Visitor Center. In fact, due to threatening comments posed by the Independence Visitor Center Corporation ("IVCC") and a prolonged and inflexible refusal by the Independence Visitor Center Corporation and National Park Service ("NPS") to compromise, to act in good faith and to not act in a random and arbitrary manner, The Constitutional Walking Tour no longer has any business relations with the Independence Visitor Center Corporation.

Issues negatively affecting the working relationship between The Constitutional, the IVCC and the National Park Service arose more than five years ago. Since the Spring of 2006, The Constitutional has made repeated efforts to facilitate an agreement and resolution amenable to all parties. The IVCC and NPS have repeatedly rebuffed The Constitutional's attempts. In July 2009, following an established pattern of improper treatment by NPS and the IVCC, The Constitutional filed litigation as a last resort. Even after the litigation was filed, The Constitutional used good faith efforts to negotiate a settlement for past damages and for a means of operating at the Independence Visitor Center ("IVC") in a fair and equal way going forward.

One such effort by The Constitutional to amicably resolve operational issues at the IVC occurred on July 8, 2010, when The Constitutional reached out via email to Jim Cuorato, President and CEO of the IVCC. Due to the lack of visibility and accessibility imposed by random and arbitrary treatment by the IVCC and NPS, The Constitutional had experienced poor sales over the July 4th holiday weekend, and these disappointing figures were caused by the actions of the IVCC and NPS. In light of these operational challenges, The Constitutional contacted Mr. Cuorato seeking a way to avoid such issues in the future.

Instead of seriously regarding The Constitutional's concerns and engaging in a dialogue that would lead to better results for all involved parties, Mr. Cuorato tersely and dismissively replied to The Constitutional on July 9, 2010.   Mr. Cuorato dismissively refused to "dignify" The Constitutional's feedback with a "specific response" since Mr. Cuorato deemed it "un-partner-like behavior" and "nonsense."  Mr. Cuorato wrote, "I find it interesting, but not surprising, that you chose to write this nonsense. I will not dignify your letter below with a specific response." Mr. Cuorato concluded with a thinly veiled threat:

"Your antics have stretched my patience. So if you are not happy with either ticket sales or promotional events that we undertake in our building, I would be happy to stop selling your tickets and end our relationship (and am seriously considering doing so in any event)."

The prolonged and unchecked actions of the IVCC and the NPS have now caused The Constitutional Walking Tour to stop doing business once and for all at the IVC as of November 30, 2010.  With The Constitutional no longer operating at the IVC, it appears that Mr. Cuorato's plan has reached fruition. In light of the continued refusal of the IVCC and NPS to seriously and meaningfully discuss ways in which to address The Constitutional's concerns, The Constitutional is pressing forward with the lawsuit against the Independence Visitor Center Corporation and National Park Service. The Constitutional Walking Tour is seeking compensatory and punitive damages, including for lost profits, damaged reputation, loss of goodwill, legal fees and costs, whereby The Constitutional may realize some of the value that it could have realized in the creation, operation and potential sale of its business, but for the egregious actions of the IVCC and NPS.

Several Tour Operators Have Reported Operational Challenges at the Independence Visitor Center Due to Unfair, Random and Arbitrary Treatment

While this blog includes commentary regarding The Constitutional Walking Tour's operational challenges in Independence National Historical Park, a unit of the National Park Service, including at the Independence Visitor Center, The Constitutional is certainly not alone in its complaints of the unfair random and arbitrary treatment that it receives from the Independence Visitor Center Corporation ("IVCC") and National Park Service.

Other tour operators have remarked on the inequitable playing field that has been enabled by the actions of the Independence Visitor Center Corporation and National Park Service at Independence National Historical Park; these complaints have persisted at the Independence Visitor Center ("IVC") and date back to at least 2005.

On January 26, 2005, Scott Lewis, then General Manager of Ride the Ducks Philadelphia, wrote to Brian Abernathy, then Legislative Assistant to Philadelphia City Councilman Frank DiCicco, and to Fran Dougherty, then Assistant Managing Director of Philadelphia. Mr. Lewis emphasized problems that would arise by moving Ride the Ducks' operations to the Independence Visitor Center:

"We [Ride the Ducks] require a high pedestrian traffic area in order to run a successful operation [...] Placing all operators side by side would cause confusion and would be a disservice to Philadelphia visitors [...] We would have no ability to sell our own products or distribute our information at the [Independence] Visitor Center location [...] If the Visitor Center sells our tickets, we lose a substantial amount of revenue to commissions [...] The Visitor Center staff would not fairly represent our products."

By mentioning the importance of high-traffic areas and the ability to distinguish between tour operators, Mr. Lewis appeared to acknowledge the need for a tour company to have accessibility to customers and visibility for prospective customers to identify the tour attraction. Mr. Lewis expressed concerns about the possibility of the IVCC staff unfairly representing a tour and lost revenue resulting from a "partnership" with the IVC.

On June 28, 2010, Stephen Earnest, Vice President and General Counsel for Herschend Family Entertainment (which owns Ride the Ducks International (RTDI)), wrote to Dennis Reidenbach, Northeast Regional Director of the National Park Service (NPS). Mr. Earnest described as "arbitrary and capricious" (emphasis added) the NPS's decision not to extend three of the four Commercial Use Authorizations issued to Ride the Ducks by Independence Historical Park. Mr. Earnest also said, "NPS is discriminating against RTDI without any reasonable basis for doing so" (emphasis added).

Third Party Master Plan Acknowledges Challenges at the Independence Visitor Center

"IVC & NPS Relationship: The IVC and National Park Service share the Visitors [sic] Center, but they often seem to be in competition with each other. There is a clear divide in the building and the information desk and visitors can feel the apparent tension between the two entities. This can be confusing and awkward for a first time user." -- ex;it (consulting and design firm)

Overview
The Philadelphia Inquirer recently reported that the "DRPA [Delaware River Port Authority] funneled more than $13 million to groups, some with ties to board." As previously discussed on this blog, these funds were outrageously going to the Independence Visitor Center Corporation ("IVCC"), a taxpayer supported public charity, which is chaired by John Estey (who also chairs the DRPA), even though the IVCC has nothing to do with the bridges that the DRPA operates.

Part of the $1.0 Million dollars allocated from the DRPA to the Independence Visitor Center ("IVC") is intended for a "New Wayfinding System." In the IVCC's proposal for the grant funding, the Independence Visitor Center Corporation stated:

"Due to the Visitor Center's long and narrow configuration, the use of the south end of the building for NPS exhibits, and the location of the concierge desk about half way back, the current system of directional signage and pedestrian circulation is ineffective. IVCC has retained exit, a local firm specializing in wayfinding and improving the pedestrian experience in challenging environments. The results of their research will lead to a program of improvements in and around the building which will enhance the visitor experience, improve pedestrian flow and circulation, and make the building more user-friendly and easier to navigate. We will look to implement these improvements in late 2010" (emphasis added).

The "local firm specializing in wayfinding" is "ex;it", and the firm created a "draft preliminary" plan dated September 3, 2010, and titled, "Independence Visitor Center: Visitor Experience Assessment & Touchpointing Master Plan." Ex;it identified five main priorities for the IVC: increase revenue, increase number of visitors, improve visitor experience, increase utilization of services, and increase staff efficiencies. Through its analysis, ex;it also identified some of the challenges facing tour operators at the IVC. Elements of ex;it's analysis are presented below and in the Exhibits. Details about the specific problems facing The Constitutional Walking Tour in terms of visibility and accessibility are presented in this post and in this video.

Problems for Walking Tour Operators
The observations and conclusions in the Master Plan highlight some of the major obstacles challenging walking tour operators at the IVC:

• The assessment includes an image of the North End of the IVC labeled "EMPTY" with the caption, "The North Entrance is usually empty and disorienting. Occasionally a tour meets here and clogs the entrance, but there is often only empty tables to welcome visitors."

• "Observations show the location of the café is a visual block in the space."

• "The Playmotion screen currently resides in the North end and lacks clear identification. It takes away possible seating and generally visitors did not find the screen enjoyable. It is not centered around Philadelphia history nor does it have a clear focus."

• "These [concierge] interactions are not typically tailored to the individual, nor do they promote the smaller, lesser known attractions."

• "Vendors: There are multiple vendors that serve visitors out of the Visitor Center. Visitors may choose to bypass the Concierge Desk and approach the tour vendor directly. These experiences are often more focused and 'retail oriented.'" These vendors include Ride the Ducks, Philadelphia Trolley Works, Franklin's Footsteps, City of Philadelphia Mural Arts Tours, Max and Me Catering, etc.

• "Currently the IVC directs many visitors to use the tourist-centered transportation such as the Phlash bus, taxis or the Big Bus tour. Public transit, like Septa, is difficult to give instructions for, so most visitors are directed to use other transportation." (emphasis added)

Walking tours such as The Constitutional Walking Tour are relegated to a remote, "empty" area of the IVC where they are overshadowed by a large media system (playmotion) that is unfocused and not enjoyable. The cafe further obstructs the visual space that may encourage visitors to head towards the walking tour staging location. According to ex;it's findings, the IVCC's concierge staff does not ameliorate this problem as they appear to promote large companies such as Big Bus tours instead of smaller businesses with less accessibility and visibility to visitors. Furthermore, the lack of a designated space or sales kiosk (which The Constitutional has tried to attain from the NPS and IVCC through a license for comparable space on fair, reasonable and non-discriminatory terms) precludes The Constitutional Walking Tour, for example, from delivering the more direct and focused retail experiences that other vendors can.

$1.0 Million in Public Funding from the Delaware River Port Authority ("DRPA") to the Independence Visitor Center Corporation (IVCC)

Private Benefit and Inurement - Public Dollars Serving Private Interests: Independence Visitor Center Corporation ("IVCC") Is Not A "Small, Emerging and New Business" as per DRPA's Grant Requirements; DRPA's and IVCC's Corporate Governance - Conflicts of Interest with Funding when John Estey Chairs Both DRPA and IVCC

On November 19, 2010, the Philadelphia Inquirer reported that the "DRPA funneled more than $13 million to groups, some with ties to board,"

"DRPA [Delaware River Port Authority] officials repeatedly have said in the last two years that they were out of the economic-development business... That followed the DRPA's pledge in July 2008, during public hearings for bridge toll increases, to end its spending on such projects."

On November 15, 2010, the Philadelphia Inquirer Editorial Board published the following,

"The Delaware River Port Authority has finally proven the existence of an alternate universe in which it must be located. In an era of dire government budgets and municipal bankruptcies, it's somehow sitting on a gigantic pile of spending money.

Despite the temptation to keep found cash, many people actually try to return it to whomever it belongs. One might even be so starry-eyed as to hope the DRPA would give its extra money back to the public - a notion likely to make one of its officials laugh so hard as to choke on his toll-funded wasabi-and-panko-crusted ahi tuna steak at the Palm."

On August 9, 2010, the Philadelphia Industrial Development Corporation ("PIDC") reached an agreement ("Funding Agreement") with the Independence Visitor Center Corporation ("IVCC") whereby PIDC would funnel $1.0 Million in economic development funds from the Delaware River Port Authority ("DRPA") to the IVCC.

The details of this Funding Agreement reveal the inherent conflict of interest that has emerged through the entangled web of allegiance and responsibility between two agencies designed to serve the public--DRPA and IVCC.

John Estey is the Chairman of the Board of of Directors of both the DRPA and the IVCC. His law firm, Ballard Spahr, has represented both of these organizations for years. The PIDC Funding Agreement appears to show the ways in which public funds may have been used for the personal gain of those involved in these organizations.

A Growing Chorus for Transparency at the Independence Visitor Center Corporation

Calls for openness at the publicly funded Independence Visitor Center Corporation ("IVCC") are increasing. In recent months, several elected members of the Pennsylvania Legislature have requested that IVCC adopt and abide by both the Pennsylvania Right to Know Law and Sunshine Act. Pennsylvania State Representative Michael O'Brien, Pennsylvania State Senator Anthony Williams, and Pennsylvania State Senator Lawrence Farnese have all written to Philadelphia Mayor Michael Nutter and Pennsylvania Governor Rendell, asking them to make the Independence Visitor Center transparent and to heed the Final Determinations of the Pennsylvania Office of Open Records by releasing documents related to the IVCC.

On September 21, 2010, Representative O'Brien wrote to both Mayor Nutter and Governor Rendell:

"As you know this entity [IVC] is located in my district and I feel it is important that such an entity located in the heart of the historic area should be beholden to the values [...] our country was founded on [...]"

On November 22, 2010, Senator Williams wrote to both Mayor Nutter and Governor Rendell, saying:

"I would request your leadership in abiding by the Sunshine Act and the Pennsylvania Right to Know law [...] It is my understanding, the requests under the Right to Know law are being denied. Since the IVC receives funds provided by the Commonwealth of Pennsylvania, it would be appropriate to have this request fulfilled."

On November 23, 2010, Senator Farnese wrote to both Mayor Nutter and Governor Rendell, also issuing a call for open operations:

"Compliance with the Right to Know Law and the Sunshine Act would provide openness and accountability to this publicly-funded entity and its operations [...] I ask for your leadership in following both the letter and spirit of open records laws in dealing both with Mr. Bari and any other citizen requesting information in the future."

Elected public officials are attempting to make the IVCC transparent. These elected officials have acknowledged the need of the IVCC to become accountable to the public which funds it.

It is time for Mayor Nutter and Governor Rendell to relent in their protection of the secretive business practices at the IVCC. It is time for Mayor Nutter and Governor Rendell to release the requested records as ordered by the Pennsylvania Office of Open Records and to demand transparency and accountability at the Independence Visitor Center Corporation.

---------------------------

Exhibits:
Letter from Representative Michael H. O'Brien to Governor Rendell, 9-21-2010

Letter from Representative Michael H. O'Brien to Mayor Nutter, 9-21-2010

Letter from Senator Anthony Williams to Governor Rendell, 11-22-2010

Letter from Senator Anthony Williams to Mayor Nutter, 11-22-2010

Letter from Senator Lawrence Farnese to Governor Rendell, 11-23-2010

Letter from Senator Lawrence Farnese to Mayor Nutter, 11-23-2010

Statement on the DRPA and Independence Visitor Center Corp.

We applaud Governor Rendell, Governor Christie, John Estey, Chairman of the Delaware River Port Authority (DRPA), and the rest of the members of the Board of Commissioners of the DRPA in adopting resolutions for improvement, including abiding by both the Sunshine Act and Pennsylvania Right to Know Law.

Reform is a journey and not a destination. As such, reform has to continue going forward, and reform must include changes to the culture of the DRPA. The DRPA must prove to the taxpayers that the reforms adopted are not merely superficial concessions designed to quell a brief media uproar, enabling self-serving business interests to permeate its operations. Moreover, similar changes must occur at other taxpayer supported public trusts with commonalities to the DRPA.

For example, if Mr. Estey believes that the DRPA should adopt the Sunshine Act, abide by the Pennsylvania Right to Know Law, and conduct business in a transparent and fair manner, then the Independence Visitor Center Corporation (IVCC) should as well.

The Boards of Directors of DRPA and IVCC are both chaired by John Estey, Esq., senior partner at Ballard Spahr and Governor Rendell's former chief of staff. Both the DRPA and IVCC use Ballard Spahr as outside counsel; Ballard has billed DRPA almost $3.1 million in legal fees from 2000-2010.

Both DRPA and IVCC operate essential public facilities. Both the DRPA and IVCC have an insular culture that does the public’s business in private. Both the DRPA and IVCC are taxpayer supported public trusts that are rife with patronage. Both the DRPA and IVCC are stuck in a time warp because both the DRPA and IVCC have been quite clandestine in terms of their operations and corporate governance. Both the DRPA and IVCC are heavily influenced by Governor Rendell (Rendell personally appointed most of the Pennsylvania commissioners to DRPA and he appointed the "Governor's Representative" to the IVCC).

On information and belief, the DRPA gave the IVCC $1.8 million in 2010 in an economic development grant, although there is no information available as to the details of those funds from either the DRPA and IVCC.

Nonetheless, as reported in The Philadelphia Inquirer on August 20, 2010, Mr. Estey claims, "It's [IVCC] not a public entity [...]"

To the contrary, the IVCC is absolutely a public entity given the massive public funding which the IVCC receives, the federal land on which the Visitor Center stands, the federal employees stationed within, and the federal legislation that authorized its creation.

Both the DRPA and IVCC maintain a sense of entitlement, an attitude that they can do no wrong, that they answer to no one and are certainly in no way accountable to the public which funds them. Unless Mr. Estey and Governor Rendell (Mayor Nutter also serves on the Board of Directors of the Independence Visitor Center Corporation), extend the resolutions for the DRPA to other secretive public organizations, like the IVCC, the proposals for change will be exposed as political smoke screens, enabling business as usual to continue without restriction or public oversight.

Jon Bari
The Constitutional Walking Tour of Philadelphia

Exhibits
*Article published in The Philadelphia Inquirer: "Now, [John] Estey should get the Visitor Center to open up," 8/20/2010

*Letter from John Estey to Governors Christie and Rendell discussing proposed changes at the DRPA, 8/4/2010

*Letter from Jon Bari to Mayor Michael Nutter calling for transparency at the IVCC, 8/13/2010

*Letter from Jon Bari to Governor Rendell calling for transparency at the IVCC, 8/17/2010

The Declaration of Tourism Independence

Overview
President-elect Obama called for a “new Declaration of Independence” when he was in Philadelphia on January 17, 2009 during his Whistle Stop Tour to Washington, D.C.,

“And yet while our problems may be new, what is required to overcome them is not. What is required is the same perseverance and idealism that our founders displayed. What is required is a new declaration of independence, not just in our nation, but in our own lives - from ideology and small thinking, prejudice and bigotry - an appeal not to our easy instincts but to our better angels.”[i]

THE DECLARATION OF TOURISM INDEPENDENCE
IN CONGRESS, March 12, 2009.

The Unanimous Declaration of THE CONSTITUTIONAL WALKING TOUR OF PHILADELPHIA,

When, in the course of an unprecedented economic crisis coupled with unfair, random, arbitrary and capricious actions by the National Park Service, it becomes necessary for one small business to dissolve the bonds which have had a material adverse effect on the overall visitor experience to America’s Birthplace at Independence National Historical Park (Independence Park) in Philadelphia for numerous reasons, including the National Park Service’s violations of the spirit of Independence Park’s enabling legislation[ii] and willful non-compliance with the Gateway [Independence] Visitor Center Authorization Act.[iii]

We hold these truths to be self-evident, that all tour operators are created equal, that these qualified tour operators should be endowed with certain unalienable rights, that among these are life, liberty, and the pursuit of operating a tour business on a level playing field free from the National Park Service’s random, arbitrary and capricious actions imposed under its wide and unchecked discretionary authority. It is the right of a tour operator which complements park relevance and enhances visitor experience to demand an immediate cessation of the intolerable acts of the National Park Service and the Independence Visitor Center.[iv] It is the vendor’s right, it is the entrepreneurs’ duty, to demand fair treatment including having the National Park Service authorize The Constitutional’s environmentally friendly walking tour to have accessibility and visibility to visitors, comparable to more favored vendors which receive such authorizations from the National Park Service. Such has been the patient sufferance of visitors; and such is now the necessity which constrains the vendors to alter their former systems – say goodbye to business as usual at Independence Park and the Independence Visitor Center, which has devolved into a Federally subsidized bus depot at the Visitor Center that preferences carbon emitting, for-profit motorized tours over The Constitutional’s green tours. The history of Independence Park is a history of the people protesting with a Declaration of Rights & Grievances against King George III over unfair taxation and unjust trade practices, leading to The Declaration of Independence, and the birth of the United States of America. To prove this, let facts be submitted to a candid world.

The evolution of Independence Park and the increase in popularity of heritage tourism at America’s Birthplace have combined to subject the discriminated vendors - Tour Operators like The Constitutional Walking Tour of Philadelphia - to the brink of shutting down, the evidence of which is stated below:

• For the National Park Service being willfully non-compliant with the 1999 Gateway Visitor Center Authorization, Public Law 106-131, for over nine years, by failing to execute a long-term detailed operating agreement with the Independence Visitor Center Corporation that would presumably set some formal ground rules for the equitable treatment and rights of vendors, including non-profit and for-profit entities that operate visitor and tour related services, at the Visitor Center.[v]
• For the National Park Service unfairly, arbitrarily and capriciously issuing written authorizations in the form of Commercial Use Authorizations (CUAs) and Special Use Permits to some “favored” third parties[vi] and not to other interested and qualified third parties such as The Constitutional Walking Tour which is complementary to the Park’s mission and visitor experience objectives, is appropriate for public use and enjoyment of the Park, is an environmentally friendly “green” tour, does not cause unacceptable impacts on the Park,[vii] and benefits the Independence Visitor Center (Visitor Center) and in turn the NPS financially from ticket sales for The Constitutional.
• For the National Park Service selectively enforcing rules and regulations including with existing Commercial Use Authorizations to preferred vendors who are given the CUAs.[viii]
• For the National Park Service issuing Commercial Use Authorizations to Ride the Ducks’ fictitious business entities such Philly Ducks, Penn Ducks and River Ducks to help Ride the Ducks circumvent the evident intent of City of Philadelphia’s laws.[ix]
• For the National Park Service and the Independence Visitor Center management randomly, arbitrarily and capriciously evicting The Constitutional from the Visitor Center in 2006 and 2007 with neither any notice nor cause following the Summer 2005 season when The Constitutional was the top selling tour at the Visitor Center sales desk.
• For the National Park Service enabling the Independence Visitor Center to require that The Constitutional sign a broad sweeping “gag order” masked as a confidentiality agreement as a required condition to negotiating a license agreement for a ticket booth comparable to what other motorized tour operators have licensed (the confidentiality terms were not a requirement of the other ticket booth licensees, and the non-disclosure terms would survive even if no license agreement was ever executed).
• For the National Park Service censoring The Constitutional’s popular marketing brochure called The Independent from being distributed on INHP grounds including at the Independence Visitor Center.
• For the National Park Service and the Visitor Center retaliating against The Constitutional in attempts to greater marginalize The Constitutional (The Constitutional’s historical sales from the Visitor Center declined approximately 77.0% from the 2005 summer tourist season to the 2008 summer tourist season, despite an overall growth in visitor traffic experienced in the Visitor Center, as reported by the NPS, and growth in The Constitutional’s other sales channels for its tour business).

The evolution of Independence Park and the increase in popularity of heritage tourism at America’s Birthplace have combined to subject the people - Visitors - to a lack of real consumer choice and artificially inflated prices, the evidence of which is stated below:

• For the National Park Service randomly, arbitrarily and capriciously giving preferential advantage to other non-motorized and motorized tours which have been granted special written authorizations and informal authorizations to conduct business practices that offer key competitive operational advantages.[x]
• For the National Park Service randomly, arbitrarily and capriciously preferencing tours which are not historically and/or contextually relevant to INHP, in addition to being detrimental to the visitor experience at Independence Park.
• For the National Park Service fostering a “polluted” environment that stifles innovation, limits consumer choice, and drives up tour prices – all adversely affecting the visitor experience.
• For the National Park Service fostering a polluted environment (air and noise) with motorized tour operators using various vehicles for their tours including World War II era DUKW (duck boat) amphibious vehicles, authentic London double decker buses and Victorian trolleys - These motorized vehicles provide tours on thematic vehicles having no contextual relevance to the historical interpretation of Independence National Historical Park (in the 1700s-1800s).

We, THE CONSTITUTIONAL WALKING TOUR, therefore do, in the name, and by the authority of the good people who visit America’s Birthplace and who attempt to operate a small business showcasing America’s Birthplace, solemnly publish and declare, that THE CONSTITUTIONAL will work to absolve the public from these problems by appealing to Congress and other government officials for long overdue oversight on the National Park Service. THE CONSTITUTIONAL pledges to act as the people’s most eco-friendly tour in Philadelphia from this day forward – Where Every Day is Independence Day!™

----------------

Exhibits: 





[i] http://www.nytimes.com/2009/01/17/us/politics/17text-obama.html?ref=politics

[ii] “Independence National Historical Park Act of 1948” - U.S. Code, Title 16, Chapter 1, Subchapter LI. http://www4.law.cornell.edu/uscode/16/ch1schLI.html

[iii] Public Law 106-131, December 1999, http://www.theconstitutional.com/news/inhp/Gateway%20Visitor%20Center%20Authorization%20Act%2012-7-99.pdf

[iv] The Independence Visitor Center was built on land owned by the Federal government and administered by the National Park Service. The NPS has contracted with a private entity, Independence Visitor Center Corporation, to operate the facility, and the NPS has supported the Visitor Center with Federal appropriations of $6.4 million since 2001 that has primarily been disbursed with annual appropriations of $850,000.00. The Visitor Center is approximately 50,000 square feet in size, and is marketed as the “largest facility of its kind in the world.” The Visitor Center was designed and intended to serve as a tourism hub and the primary point of orientation and visitor services for the Park and surrounding environs. The Visitor Center is the only official on-site ticketing location for visitors to pick up tickets to Independence Hall. The Visitor Center promotes the notion that that visitors need to “Start at the Center” in order to experience the “best way to see Philly.” For details, see http://www.theconstitutional.com/news/inhp/INHP-Payments-to-IVCC.pdf

[v] In lieu of a long term detailed operating agreement, the NPS issued a bare-bones temporary Special Use Permit to the IVCC in November 2001 and then has extended it 20 separate times “to allow additional time to finalize a formal [management] Agreement.” What is also even more curious about the repeated renewals of the Special Use Permit is that according to all of the audited financial statements of the IVCC since at least 2003, the NPS and IVCC have “substantially established a management agreement” that “calls for the NPS to make an annual payment of $850,000.00 to IVCC in exchange for the services provided by the IVCC more fully described in the agreement.” While more than $6.4 million has been spent by the Federal government to fund the IVCC’s operations since 2001, the NPS and IVCC have not executed a management agreement, and the operating agreement, which is supposedly done, is confidential and not available for public inspection.

[vi] Ride the Ducks, Philly Ducks (Ride the Ducks doing business as), River Ducks (Ride the Ducks doing business as), Penn Ducks (Ride the Ducks doing business as), 76 Carriage Company, Inc. (doing business as Philadelphia Trolley Works), Philadelphia Trolley Works (including its Franklin Footsteps walking tour), Big Bus Tours (Philadelphia Trolley Works doing business as), Lights of Liberty Inc. (walking tour), Historic Philadelphia, Inc. (including its walking tours), etc.

[vii] Management Policies 2006, National Park Service, Section 10, page 144 - Commercial Visitor Services, ISBN 0-16-076874-8, http://www.nps.gov/policy/MP2006.pdf

[viii] Ride the Ducks, Philly Ducks (Ride the Ducks doing business as), River Ducks (Ride the Ducks doing business as), Penn Ducks (Ride the Ducks doing business as), 76 Carriage Company, Inc. (doing business as Philadelphia Trolley Works), Philadelphia Trolley Works (including its Franklin Footsteps walking tour), Big Bus Tours (Philadelphia Trolley Works doing business as), Lights of Liberty Inc. (walking tour), Historic Philadelphia, Inc. (including its walking tours), etc.

[ix] Section 1, Title 9, Chapter 9-400 Carriers, of The Philadelphia Code, Regulation of Businesses, Trades and Professions, as amended on January 24, 2006. and “When Ducks Act Like Hogs: Tour-Bus Quackery,” Ronnie Polaneczky, Philadelphia Daily News, March 25, 2009, http://www.theconstitutional.com/news/inhp/Daily%20News%20Article%20Ride%20the%20Ducks%203-25-08.pdf

[x] Ride the Ducks, Philly Ducks (Ride the Ducks doing business as), River Ducks (Ride the Ducks doing business as), Penn Ducks (Ride the Ducks doing business as), 76 Carriage Company, Inc. (doing business as Philadelphia Trolley Works), Philadelphia Trolley Works (including its Franklin Footsteps walking tour), Big Bus Tours (Philadelphia Trolley Works doing business as), Lights of Liberty Inc. (walking tour), Historic Philadelphia, Inc. (including its walking tours), etc.

A Constitutional Crisis within Our National Park Service (NPS) System

Independence National Historical Park (INHP or the Park)

Philadelphia, Pennsylvania

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. [1]


With these words our nation launched a great experiment in freedom and democracy within a representative form of government where the rule of law and not the proclivities of individuals would govern civil society. These principles enshrined in one of our nation’s founding documents have endured for over 200 years and serve as a beacon to the world. However, in the City where these principles were forged, a gross violation of their spirit is occurring by the NPS.

OverviewIn an April 3, 2008 editorial entitled “Mall Madness,” The Philadelphia Daily News said that,

“For nine years, the [Independence] visitor center and [National] Park Service have failed to come up with an agreement to run the center that might make the rules governing tour companies more consistent and less arbitrary... This is a shameful state of affairs."[2]

Issue – Requesting a Breakthrough (Not a Bailout) for a Small Business
It should not take four years and a team of lawyers for a small business to try to compete on a level playing field free from unconstitutional, unfair, random and arbitrary practices by the National Park Service. However, that is exactly the case for Jonathan and Leslie Bari, husband and wife entrepreneurs, who invested in and developed their own American dream with The Constitutional Walking Tour of Philadelphia (The Constitutional). The Constitutional annually employs 30 people in providing guided walking tours of America’s Birthplace at INHP which features many historic sites including the Liberty Bell, Independence Hall and the National Constitution Center.

Even though The Constitutional is consistent with INHP’s enabling legislation,[3] is complementary to the Park’s mission and visitor experience objectives, is appropriate for public use and enjoyment of the Park, is an environmentally friendly “green” tour, does not cause unacceptable impacts on the Park,[4] and benefits the Independence Visitor Center (Visitor Center) and in turn the NPS financially from ticket sales for The Constitutional, NPS has exhibited an ongoing pattern and practice of malfeasance and discrimination against The Constitutional and violations of its owners’ various Constitutional rights.

In this unprecedented economic crisis, the bottom line is that The Constitutional is being regulated and taxed out of business by the National Park Service. While many companies in diverse industries are seeking a Federal bailout, The Constitutional is simply seeking a Federal breakthrough to overcome NPS’s non-compliance with Federal laws and NPS’s intransigence that have been enabled to date without any meaningful oversight.

Independence National Historical Park & Independence Visitor Center Corporation - Congressional Oversight Needed

Overview
In an April 3, 2008 editorial entitled "Mall Madness", The Philadelphia Daily News said that, "For nine years, the [Independence] visitor center and [National] Park Service have failed to come up with an agreement to run the center that might make the rules governing tour companies more consistent and less arbitrary... This is a shameful state of affairs." http://www.theconstitutional.com/news/inhp/mall.madness.pdf

Commentary (written by The Constitutional Walking Tour of Philadelphia)
Why is it that it took less time for America to land a man on the moon than it has for the National Park Service and the Independence Visitor Center Corporation ("IVCC") in Philadelphia to enter into an Operating Agreement? President Kennedy announced in May 1961 that he wanted to land a man on the moon and achieved that goal in July 1969. In contrast, on December 7, 1999, President Clinton signed the Gateway [Independence] Visitor Center Authorization Act (Public Law 106-131) which required that the IVCC enter into an Operating Agreement with Independence National Historical Park ("INHP"), a unit of the National Park Service. As we mark the law's ninth anniversary, no Operating Agreement has been signed, in spite of being statutorily-mandated.

The lack of an Operating Agreement is counter-productive and detrimental to the mission and effective transparent implementation thereof for both the IVCC and INHP. Without any written, detailed and publicly available Operating Agreement, then specific management activities and services are impossible to objectively track. Additionally, the flagrant non-compliance of the INHP and IVCC to execute this Operating Agreement has been detrimental to The Constitutional Walking Tour and other vendors since that Operating Agreement would presumably set some formal ground rules for the equitable treatment and rights of vendors at the Independence Visitor Center. In the absence of any Operating Agreement, The Constitutional has been unfairly treated and has been beholden to the wide discretionary powers of the INHP and IVCC that are used randomly, arbitrarily and capriciously.

Our Founding Fathers taught us that checks and balances are required for our system of government to work. However, a closer look at the IVCC reveals that there are few, if any, checks and balances with the IVCC and the National Park Service to ensure that the taxpayers' investment in these public trusts is effective, efficient and fair such that the Independence Visitor Center works as the United States Congress intended it to work.