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.

National Park Service ("NPS") and the Independence Visitor Center Corp. ("IVCC") Enforced Censorship At Independence Park - The IVCC and NPS Retaliated Against The Constitutional Walking Tour & Damaged Relationship with "Where Philadelphia" Magazine

Overview
Through policies that changed so frequently, randomly and arbitrarily as to preclude the existence of any true standard policy, the National Park Service ("NPS") and Independence Visitor Center Corporation ("IVCC") enforced censorship at Independence National Historical Park ("INHP"), a unit of the NPS in Philadelphia. Furthermore, the IVCC, with the complicit oversight of NPS, retaliated against The Constitutional Walking Tour ("The Constitutional") for challenging these random and arbitrary acts of censorship. Such retaliation by the IVCC, with the approval of NPS, irreparably damaged a critical business relationship between The Constitutional and Where Magazine.

Censorship at America's Birthplace
On May 25, 2007, Bill Moore, former President and CEO of the IVCC, gave his staff instructions at the Independence Visitor Center's ("IVC") Main Information & Sales Desk to inform The Constitutional that it would no longer be allowed to distribute its new 2007 marketing brochure, The Independent, inside of the Federally owned Independence Visitor Center, despite the fact that the same content had previously been deemed acceptable in The Constitutional’s prior brochures and in turn distributed at the IVC. Copies of The Independent at the Independence Visitor Center were confiscated and removed by the IVCC's management from all display racks at the Independence Visitor Center, including at the IVC's Main Information & Sales Desk.

On information and belief, Mr. Moore did not like The Independent since he viewed it as competitive with the "Historic Philadelphia Gazette" (also just referred to as "The Gazette"), another news pamphlet/brochure distributed by the Independence Visitor Center. NPS and Historic Philadelphia, Inc. ("HPI"), have officially collaborated for many years on publishing The Gazette which is taxpayer funded and which serves as the official news pamphlet/brochure of INHP; "the Gazette is a joint venture of HPI and the National Park Service."  Additionally, according to Mr. Moore, the IVCC has “regular discussions with the staff that publishes the Historic Philadelphia Gazette regarding content and information.”

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.